PARTIES TD DISPVTE. (

MTRAENT CEP CLAIM: "Claim of the System Committee of the Brotherhood that:
n of may i7,
 1968 when on march 1978 without the Organization advance written notice, it contracted work coming within the scope of our Agreement to an outside construction company (System File D-8-T8/mbi-22-T8).

 (2) The claimants* listed below each be allowed an equal proportionate share of the straight time and overtime worked by the employee of the Lowdermilk Construction Company to compensate then for the violation referred to in Part (1) hereof.


















        Ebaagh, L. E. Phillips, B. Jr.

        Gifford, R. L. Phillips, R. C.,

        Graves, W. A. Poorman D. C.

        Grinds, Do We Ratliff 0 0.

        Grishman, B. Rich, R. A.

        Gulliford, W. F. Ross., Be M.

        Haynie, W. C. Rowe,, '

        Iscovetto C. R. Rowe,, G.

        B.Smit h,

        We Ingli s, J. Be Thompson., Do G. T. .

        Webber, E. D.

Award Number 23203
 Docket Humber 161-23172

 "iWebber, J. S. Webber, J. J. Whaley$, J. L. William, C. G. Wis`tell, J. L.

 Wright, M. T. Wright, W. B. Wyekoff, H. D."

 Page 2

 OPIRIOH Of HOARD: The organisation has filed a claim an behalf of
 sixty members of the Brotherhood who are employed
 by carrier in the Maintenance of Way Department. The organization alleges
 that carrier violated Article iv of the may 17e 1968, National Agreement
 when it failed to notify the general chairman that it intended to contract
 out clearing and grading work 15 days prior to the time it contracted out
 the work to the H. $. Lawdermilk Company.

 On March 7, 1978, a rock and mud slide caused a derailment at Webster Hill cut. Carrier contracted with the H. E. Lowdermtlk Company to clear the slide. At the conclusion of this clearing work an March 9, 1978, carrier concluded that a hazardous condition still existed and that further slides were iamdnent. It therefore retained H. B. Lovdermilk Oompany from March 9., 1978e to March 23, 1978, to finish the ditnh~ and sloping of the area.

 Cattier contends that an emergency existed, that it informed the general chairman an soon as it could, that it did not have the necessary equipment to do the work required* and that, in the final analysis, the work vas not exclusively reserved to claimants under the agreement. Carrier maintains it had the right to subcontract the work without conferring with the general chair. It also argues that all carrier maintenance of way employes were assigned to other jobs. All were fully employed end no one lost any pay because of the subcontract.

 The organization contends that after the train was rerailed and the tracks cleared from the initial mud slide, the emergency was over. The organization argues that on March 9, 1978, the emergency had ended and all work performed by the contractor between March 9, 1978, and March 23, 1978, ryas work that could have and should have been performed by carrier employes. It argues that carrier does possess the necessary equipment to do the required work and that carrier employes have the necessary skills and were available to perform the job.

 After a thorough review of the record and discussion thereof, this Board finds that the work performed by the contractor was work properly belonging to carrier employee. Once the emergency was over on March 9, 1978., carrier should have conferred with the general chairman prior to continuing
        Award Number 23203 page 3

        _ Docket Number W-2317'2


with the project. The organization should have been given its contractual right to discuss such projects with carrier and offered an oppoa~unity far the general chairman to secure the work for his embers.

 Carrier argues that the ar8snization dial not have exclusive rights to the pork in question and therefore it need not confer with the general chairmen, This Board has addressed the exclusivity issue in previous awards pad bas rejected the argument that the organization must prove exclusivity Viar to carrier being required to give notice under Article 1V (Third Division Award lo- .1957k., Lieberman).

 in the instant mse, carrier notified the general ehairmsn of the subcontract by letter after the contract had been given to an outside contractor. The Hoard finds it difficult to consider this to be proper notice usxla Article IV. Carrier asserted that it did so because it considered that an emergency still existed and it needed to get the work dote promptly, The record. in barren of any evidence to support the notion that an emergency occurred after the rock and mud was cleared from the track. Carrier states that it did and the organization states that it did not. Carrier has more of a burden when it offers a positive defense. Some evidence must be presented. Hone is apparent in the record. Based on the foregoing, this Board will sustain item one of the claim.

 in item two,, the organization requested that a list of 60 men share equally the straight time and'ovartime worked by employee of the subcontractor, This Board has a great deal of difficulty in Justifying such a claim based on the record before us. The Board in mindful of the fact that an award that declares carrier in violation of the agreement and then does not compensate claimant isp in a real sense, a shallow victory. The difficulty., howevers, in that the record is barren of sufficient facts on which this Board can base a monetary award to be divided among 60 men.

 However, the Board does find that Carrier did have certain equipment that was used during the period March 7-9 but was then removed and held in reserve. Carrier, in its November 17, 1978 denial by the Director Personnel, states:

            "The D-8 cats which you refer to are all specially equipped for wreck and derailment work and when not engaged in such work are strategically located at various points on the Carrier's main lines, kept poised and ready to move to the scene of wrecks or derailments as quickly as possible when and if needed."

              _. Award r 23203 Page 4

              Docket Number NW-23172


      Obviously, if the equipment was needed during the emergency of March 7-9, it was also needed during the subsequent emergency situation.

i To assert that there was no available equipment while admitting that
 -; equipment was kept idle does not support the Carrier's contention of lack
    j of necessary equipment. Carrier can't have it both ways. Thus, the Carrier

    should have continued to use the two D-8 Caterpillar dozers and the oper

    ators used to rerail the train and clear the main line after the slide.

    \ Clearly this equipment could have been continued in use.


      The Board is bound by its many previous awards on the issue of employes being compensated for Article Iv violations on the basis of actual losses only. We, therefore, will award the two D-8 Caterpillar operators overtime at two hours per day, Monday through Friday, plus 10 hours for each Saturday and Sunday worked by the construction crew from March 9, 1978, to March 23, 1978 (Third Division Award 19619, Blackwell).


              FINDIIGS: 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 Agreetoent vas viW.nted.
              A W A R D


        Claim aVStsiued in accordance with tile Opinion. ~~\~,


                          NATIONAL RAILROAD ADJUSTMENT BOATS)

                          By Order of Third Division


ATTEST:
            Executive Secretary


Dated at Chicago, Illinois, this 16th day of March 1981.
      .


;. '- , , Serial No. 308

                      NATIOILAL RAMROAD ADJLZZ:MNT BOARD


                              THIRD DIVISION


                      IIaIRPRETATION N0. 1 to AWARD 23203


                            DOCKET No. Mw-23172


        NAME OF ORGANIZATION: Brotherhood of Maintenance of Way Deployes


        NA?·E OF CARRIER: The Denver and Rio Grande Western Railroad Company


        Upon application of the representative of the Employes involved in the above Award, that this Division interpret the same in light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (M), of the Reilway Labor Act, as apprcved June 21, 1934., the following interpretation is made:


        A dispute arose between the tarties as to the meaning and intent of our decision wherein we stated that the claim is sustained per opinion of the Board. The pertinent language of the opinion is as follows:


              "We,therefore, will award the two D-8 Caterpillar Operators overtime at two hours per day, Monday through Friday, plus 10 hours for each Saturday and Sunday worked by the construction crew from March 9, 1978 to March 23, 1978."


        It was the intent of the Board when this Award was rendered test all payments to Clainanta would be on a tide-and-one-half basis. Referee Roaney L. Dennis, who sat with the Division as a neutral meebcr when .ward No. 23203 Bias adopted, also participated with the Division in making this interpretation.


                                    ILATIONAL RAILROAD ADJUSTi.MtT BOARD

                                    By Order of Third Division


        Attest: Acting Erecutive Secretary

        National Railroad Adjustrient Board


. ...·_"77"

 1

        Bv

. Rosemarie hrascl: - A6.::nictrative hscisrant

        Dated at Chicago; IlJtcois, this 10th dry of Msrch 19°2.