NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22657
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Detroit and Toledo Shore Line Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8676)
that:
1. The Carrier violated the effective Clerks' Agreement when, commencing
on October 1, 1977, it contracted with Mr. Gene A. Cook, and/or Cook's Cleaning
Service, to perform janitorial work at the Carrier's Trenton, Michigan station, in
a manner meant to evade the application of the Agreement.
2. The Carrier shall now compensate Mr. Cook for the difference between
eight (8) hours' pay per week at the time and one-half rate of his assignment and
$130.00 per month, which is the amount paid him by the Carrier, commencing on
October 1, 1977, and continuing until March 12, 1978; the date the contract was
cancelled.
OPINION OF BOARD: A threshold question is presented on this record as to whether
requisite on-property conferences were held prior to the
appeal of the claim to arbitration. The same issue concerning the same parties
was presented and resolved in our recent Award 22537· We find no reason to
deviate from the findings in that Award which we reiterate as follows:
"Before this Board can deal with the merits
of the dispute, we must dispose of the arguments and counter-arguments dealing with the
type of conference that occurred between the
parties prior to submission of this dispute off the
property. From review of the record there is no
question that a conference was held. Also, there
is no question that the conference was brief and
perfunctory. One may ask, does a brief and perfunctory conference meet the jurisdictional requiremen
of the opinion that the parties' conferences complied
with the letter of the law. However, we feel that
it was not within its spirit."
Award Number
23093
Docket Number CL-22657 Page 2
"We will, accordingly, consider the claim on
its merits, but we would admonish the parties to
participate in meaningful negotiations and attempt
to adjust grievances in conference as contemplated
by the Act prior to submission to our Board. Perhaps
it would be well for the parties to review Third
Division Award 11434 (Rose) and the Supreme Court
Opinion in Brotherhood of Locomotive Engineers, et al.,
v. Louisville and Nashville (373 U.S. 33) (1963), as
quoted therein."
Turning to the merits of the present claim, it is apparent from the
record that the complained-of service is within the scope of the Agreement.
However, the subcontracting was open and notorious, yet not complained of for
at least five (5) years. In the circumstances we find Award 3-17590 controlling
in this case and follow its teaching in sustaining the allegation of violation
while denying damages on the basis of estoppel.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and
all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim Part 1 is sustained. Claim Part 2 is denied.`` '`_`
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
executive Secretary
Dated at Chicago, Illinois, this 15th day of December
1980.