Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26832
THIRD DIVISION Docket No. MW-26591
88-3-85-3-332
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it contracted with
outside concerns for the fabrication of signs to be used at the following
locations:
(a) Duluth Shiploader and the Spirit Lake Branch
(b) 'CAUTION' sign for Dock No. 5
(c) Storehouse and Scrap Bin at Two Harbors.
(2) The Carrier also violated Supplement No. 3 when it did not give
the General Chairman advance written notice of its intention to contract out
said work.
(3) As a consequence of the violation referred to in Parts (1)(a)
and (2) above, the senior BSB Department employe furloughed during the time
the work was contracted out shall be allowed eight (8) hours of pay at the
B&B
carpenter's rate in effect at the time the work was contracted. As a consequence of the violatio
senior B&B Department employe furloughed during the time the work was contracted out shall be al
rate in effect at the time the work was contracted. As a consequence of the
violations referred to in Parts (1)(c) and (2) above, Carpenter Milan Arfsten
shall be allowed sixteen (16) hours of pay at the B&B carpenter's rate in
effect at the time the work was contracted."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Form 1
Page 2
Award No. 26832
Docket No. MW-26591
88-3-85-3-332
The record shows that in 1984 the Carrier ordered several signs from
outside vendors. The Organization argues this constitutes a violation of the
Agreement and further contends the Carrier violated Supplement /I3 when it
failed to give the General Chairman advance written notice of its intentions.
The Carrier does not dispute the fact that B&B employes have made signs over
the years. Notwithstanding, the Carrier insists the record establishes that
B&B employees did not make all the Carrier's signs.
We find the record establishes that the painting of signs has customarily been assigned to B&
Additionally, the Carrier's Director of Personnel emphasized in a letter dated
September 14, 1984, that the Carrier would continue to manufacture signs which
could "economically be made there." Notwithstanding, Director of Personnel
Sutton also indicated the Carrier did not concede it had forfeited its right
to purchase from vendors when necessary.
We find that Supplement #t3 controls this issue.
the Supplement states:
"Contracting of Work
(a) The Railway Company will make every
reasonable effort to perform all maintenance
work in the Maintenance of Way and Structures
Department with its own forces.
(b) Consistent with the skills available in the
Bridge and Building Department and the equipment
owned by the Company, the Railway Company will
make every reasonable effort to hold to a minimum the amount of new construction work contracted.
(c) Except in emergency cases where the need
for prompt action precludes following such
procedure, whenever work is to be contracted,
the Carrier shall so notify the General Chairman
in writing, describe the work to be contracted,
state the reason or reasons therefore, and
afford the General Chairman the opportunity of
discussing the matter in conference with Carrier
representatives. In emergency cases, the
Carrier will attempt to reach an understanding
with the General Chairman in conference, by
telephone if necessary, and in each case confirm
such conference in writing."
In pertinent part,
Form 1 Award No. 26832
Page 3 Docket No. MW-26591
88-3-85-3-332
The Carrier is reminded that Supplement #3 is not intended to forfeit
its right to contract out work. Both parties are fully aware that Supplement
#3, Paragraph (c) requires advance notice in writing. From the record, it is
apparent both parties gave lip service to those provisions. In the fact of
such indifference on the part of the Organization, it is understandable how
the Carrier inexorably moved to the belief its right of contracting out was
unassailable. Notwithstanding, the language of Supplement #3 is clear and
unambiguous. Clearly, the fact situation supports the conclusion that the
Carrier violated the contracting out provision of the Agreement. In all
fairness, this Board concludes that, if the Organization now chooses, after a
long period of indifference, to strictly enforce the provision of Supplement
#3, it should have put the Carrier on notice. It is indisputable the Agreement was violated. The dis
compliance, this Board is unable to conclude the monetary remedy demanded is
appropriate.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest. i
Nancy J. D - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.