Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26850
THIRD DIVISION Docket No. MW-26202
88-3-84-3-610
The Third Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
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 loading work in connection with an oil spill at Clearfield,
Pennsylvania on August 15, 16, 17, 18, 19, 22, 23 and 24, 1983 (System Docket
CR-404).
2. As a consequence of the aforesaid violation, furloughed Crane
Operator J. R. Hummel shall be allowed sixty-four (64) hours of pay at the
crane operator's straight time rate."
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 employees 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 were given due notice of hearing thereon.
The relevant facts of this Claim are not in dispute. Claimant holds
seniority as a Class 1 Machine Operator in Carrier's Track Department. Claimant was on furlough on t
On August 15, 1983, a derailment at Clearfield, Pennsylvania resulted
in the spillage of approximately 3,000 gallons of diesel fuel, thereby contaminating nearby soil. Su
soil. Carrier contracted this work to Frank Varischetti Sanitation Company
(Varischetti). The work was performed on August 15-19 and 22-24, 1983, a
total of 64 hours.
On September 2, 1983, the Organization filed the instant Claim
alleging that Carrier violated the Scope Rule when it contracted out the work
without providing at least 15 days notice to the Organization. Carrier timely
denied this allegation. Thereafter, the Claim was handled in the usual manner
on the property. It is now before this Board for adjudication.
Form 1 Award No. 26850
Page 2 Docket No. MW-26202
88-3-84-3-610
The Organization argues that the instant facts did not constitute an
"emergency." As a result, it suggests, Carrier was not within any exception
which would permit it to forego the 15 days notice applicable to contracting
out.
Alternatively, the Organization maintains, even if the oil spill did
constitute an emergency, Carrier should have used its own crane which Claimant
was ready, willing and able to operate to load the Contractor's trucks. It
insists that Carrier's crane was nearby, while the contractor's was 4 hours
away. Accordingly, in the Organization's view, Claimant was deprived of work
improperly contracted out. It therefore asks that the Claim be sustained.
Carrier, on the other hand, asserts that the work was properly contracted out. Carrier stresses
the 15 day notice provision was inapplicable.
Carrier further contends that it is not required to piecemeal work by
having Claimant perform a portion while the contractor performs another portion. Accordingly, Carrie
After careful review of the record evidence, we are convinced that
the Claim must be denied. This is true for several reasons.
First, it is clear that the facts herein establish an emergency
situation. Under the emergency exception to the Scope Rule, it is permissible
for Carrier to foergo notice to the Organization.
Second, it is clear from the facts in the record that special skills
and expertise were required to conduct the removal and disposal of the contaminated soil. That Varis
to perform this type of clean-up is a strong indicator that special skill was
required. When special skills, not possessed by employees, are required to
perform the work it is permissible for the work to be contracted out. (See
Third Division Awards 7805, 11862 and 11969). This was precisely the situation in the instant Claim.
out the work.
Finally, it has been well established by this Board that work
contracted out will be considered as a whole. It will not be artificially
divided into discreet units such that the employees could have performed some
of the work. (See Third Division Awards 6112 and 12317). Hence, Carrier was
not required to "piecemeal" the work in order to enable employees to perform
some small portion thereof. Accordingly, and for the foregoing reasons, the
Claim must be denied.
Form 1 Award
No.
26850
Page 3 Docket
No.
MW-26202
88-3-84-3-610
A W A R D
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Third Division
Attest: , _
'Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.