NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25506
Frances Penn, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces to perform hauling, filling and grading work at Kirby Yard, February 17
through June 15, 1983 (System File MW-83-36/384-70-A).
(2) The Carrier also violated Article 36 when it did not give the
General Chairman advance written notice of its intention to contract said work.
(3) Furloughed Machine Operators F. Fu entes, G. R. Gonzales and E.
Hernandez shall each be allowed six hundred eighty (680) hours of pay at their
respective straight time rates and three hundred forty (340) hours of pay at
their respective time and one-half rates because of the aforesaid violations.
OPINION OF BOARD: This is a dispute initiated by the Organization on behalf
of three Claimants who are Roadway Machine Operators. The
Organization's claim is that the Carrier violated t.ne Agreement in assigning
hauling, filling and grading work to outside forces from February 17, 1983
through June 15, 1983, and that the Carrier did not give proper notification
of its intent to contract out work as specified in Article 36, which reads in
pertinent part:
"Article 36. Contracting Out
"In the event this carrier plans to contract out work within the
scope of the applicable schedule agreement, the carrier shall notify
the General Chairman of the organization involved in writing as far
in advance of the date of the contracting transaction as is
practicable and in any event not less than 15 days prior thereto."
The Carrier contends that notice of this work was given to the
General Chairman in a letter dated may 6, 1981. The letter stated:
"Please accept this as Carrier's Notice under Article 36 of the BMWE
Agreement of Carrier's intent to contract out the grading work of
three 8800' receiving and departure tracks, two 5000' holding tracks,
as well as four short servicing tracks in connection with the
proposed additional trackage and servicing facilities for Kirby Yard
at San Antonio, Texas.
Award Number 25567 page 2
Docket Number MW-25506
"Carrier's forces will perform all other work incident to the
installation of this additional trackage. Contracting is necessary
account Carrier does not have the necessary available earth-moving
equipment to perform this work.
"Copy of print is available in my office for your review."
The Carrier maintains that this notice covered the work done in 1981
and the additional work done in 1983. The Carrier states that the work to be
done was shown in a blueprint which the Carrier would have made available to
the organization. The Organization made no effort to examine the blueprint,
according to the Carrier. The organization claims that the 1981 notice
concerned track construction work but made no mention of the filling, grading,
and oiling work which the Carrier did in 1983. The blueprint, according to the
Organization would only have shown the area involved in the work to be done, it
would not have constituted proper notice of the work itself.
After careful review of the record, the Board finds that the Carrier
did not provide proper notice to the Organization of the 1983 work. Because
this work clearly fell within the Agreement, notice was required. The
Carrier's letter of May 6, 1981, did not mention or include this additional
work. The Board rejects the Carrier's contention that the 1981 blueprint
showed the work which was performed in 1983 and that, because this blueprint
would have been made available to the Organization, the letter of May 6
constituted notice of the later work. The language of Article 36 is clear and
unambiguous in requiring notification "in writing" to the General Chairman.
The blueprint in this case does not fufill the requirement to give notice in
writing. Because notice was not given, the Board finds that the Agreement was
violated.
The Carrier states that its records show that the Claimants were
recalled from furlough during the second period of March, 1983 and were
employed during the rest of the time in question. The Claimants are entitled
to pay from February 17, 1983, until they were recalled from furlough, and they
shall be made whole for work lost at their respective straight time rates.
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 gnployes 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.
Award Number 25567 Page 3
Locket Number MW-25506
A W A
R D
Claim sustained in accordance with the Opinion.
NATIONAL MILROAD
A
RCUSMENT BOARD
By Order of Third Division
Attest:
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 26th day of July 1985.