NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25497
Echehard Muessig, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when without a conference
having been held between the General Chairman and either the Engineer
Maintenance of Way or the Assistant to President as required by the May
8, 1957 Letter of Agreement, it assigned outside forces to paint
Covet Bridge 366-2 beginning July 27, 1982 (System File V-TC-1392/MW
MU-82-54).
(2) As a consequence of the aforesaid violation, Mr. W. M.
McGuire shall be allowed pay at his appropriate rate for an equal number
of man-hours expended by outside forces in performing the work referred
to in Part (1) hereof."
OPINION OF BOARD: The Organization contends that the Carrier violated
the parties' May 8, 1957 Letter of Agreement when it
failed to notify the General Chairman of its plans to contract out the
work of painting Covet Bridge 366.2 at Covel, West Virginia, and hold a
conference thereon.
The Carrier points out that this matter was conferenced with
the General Chairman, who represents the Norfolk and Western BMWE employes
and he confirmed his agreement that the bridge painting at Covet and
three other locations could be contracted out by the Carrier. However,
the bridge at Covet is on the former Virginian Railroad where the
General Chairman who agreed to the project had joint jurisdiction with
another General Chairman. Accordingly, the Carrier's intent to contract
the Covet work should have been conferenced and notice provided to both
General Chairmen. With respect to damages, the Carrier maintains that
the Claimant suffered no monetary loss, thus, an award of damages would
be a pure penalty not supported by the Rules of the current Agreement.
The record is clear that a breach of the Agreement has occurred,
since the duly accredited representative for the Claimant's bargaining
unit was not notified by the Carrier. Accordingly, we sustain Part 1
of the Claim. With respect to Part 2, the Board notes the particular
facts and circumstances prevalent herein places weight on the fact that
the one General Chairman was properly advised and agreed to the contracting out, notes the Claimant
entire period that the disputed work was being performed and, finally,
notes that a reasonable conclusion may be drawn that there was no loss
of potential earnings. In light of these factors, we will deny Part 2
of the Claim.
Award Number 25694
Docket Number MW-25497
Page 2
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 sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Dever - Executive Secretary
Dated at Chicago, Illinois, this 14th day of November 1985.
