Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27626
THIRD DIVISION Docket No. MW-26654
88-3-85-3-397
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood of Maintenance Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when outside forces were used to
dismantle and remove two (2) buildings at Glassboro, New Jersey on February 6,
7, 8, 9, 10, 13 and 14, 1984 (System Dockets CR-953, 954, 955, 956, 957 and
958).
(2) The Agreement was further violated when the Carrier did not give
the General Chairman prior written notification of its plan to assign said
work to outside forces.
(3) Because of the aforesaid violations, Machine Operators J. E.
Castaldi, D. Cerveny, T. L. Hayes, J. Pezzello and R. Rhock and Trackman C.
Miller shall each be allowed fifty-six (56) hours of pay at their respective
straight time rates."
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 waived right of appearance at hearing thereon.
The basic facts in this case are set forth as follows. On February
6, 7, 8, 9, 10, 13 and 14, 1984, Carrier assigned an outside contractor to
dismantle and remove two (2) buildings at Glassboro, New Jersey. One (1)
foreman, three (3) machine operators and five (5) laborers employed by the
outside firms worked eight (8) hours on each of the claimed dates for a total
of fifty-six (56) hours per employee and said force utilization compelled the
filing of the claims herein. It was the Organization's position that the
disputed assignment involving dismantling and demolition work was customarily
and traditionally performed by Carrier's BMWE forces and hence within the
ambit of the Agreement's Scope Rule coverage. In its August 20, 1984,. letter
to Carrier, for example, the Organization gave illustrations of past work
assignments whereby BMWE forces performed dismantling and demolition work
Form 1 Award No. 27626
Page 2 Docket No. MW-26654
88-3-85-3-397
on Carrier's property and by extension maintained that said work was protected
by the same Rule. Consequently and on this point, it argued that Carrier was
required to comply with the aforesaid Rule's notification requirements before
assigning covered work to outside contractors. This portion of the Scope Rule
is referenced, in part, as follows:
"In the event the Company plans to contract
out work within the scope of this Agreement, except
in emergencies, the Company shall notify the
General Chairman involved in writing as far in
advance of the date of the contracting transaction
as is practicable and in any event not less than
fifteen days prior thereto. 'Emergencies' applies
to fires, flood, heavy snow and like circumstances.
If the General Chairman, or his representative, requests a meeting to discuss matters
relating to the said contracting transaction, the
designated representative of the Company shall
promptly meet with him for that purpose. Said
Company and organization representative shall make
a good faith attempt to reach an understanding
concerning said contracting, but, if no'understanding is reached, the Company may nevertheless
proceed with said contracting and the organization
may file and progress claims in connection therewith."
The Organization argued that Carrier never notified the General
Chairman of its plans to use the outside contractor to renew the two (2)
buildings and its failure to do so violated this mandatory requirement. It
cited numerous Division Awards to support its position. (See Third Division
Awards 19552, 19635, 19899, 20158, 20895, 20945, 23928, 24173, 24621, et al).
Furthermore, with respect to Carrier's arguments that said work was never
assigned by rule or practice to any particular class or craft of employees,
the Organization asserted that the instant claims do not reflect a class and
craft dispute, but instead center on Carrier's notification obligation under
the Scope Rule. In essence, the Organization averred that said work was performed by BMWE employees
was effectively encompassed within the Scope Rule. It als°o asserted that
Claimants were entitled to perform such work, since as furloughed employees,
Carrier could have recalled them pursuant to Sections 3 and 4 of Rule 3.
Carrier maintained that the Scope Rule does not reserve demolition
work to employees of the BMWE craft and thus the claims must fail for lack of
Agreement support. It argued that it was not required to give prior notification. It contended that
contractors at various locations across Carrier's property and cited several
examples to substantiate this contention. It also noted that notwithstanding
the Organization's reference to a position advertisement on the Youngstown
Division, wherein the duties of two (2) advertised B 6 B Mechanic positions
included dismantling of structures, said advertisements were not dispositive,
Form 1 Award No. 27626
Page 3 Docket No. MW-26654
88-3-85-3-397
since the positions were located at a specific location. In effect, it
asserted that an advertisement, and in this case of limited application, does
not convey an exclusive right to the work involved. It cited several Division
Awards to affirm its point (See Third Division Awards 13195, 16544, 17064, et
al).
In our review of this case, we concur with Carrier's position. Basically, what is at issue herei
and customarily performed by BMWE forces. To be sure, the Organization has
developed illustrations and arguments to buttress its primary contentions but
we are not convinced.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e~of - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of November 1988.