Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28572
THIRD DIVISION Docket No. MW-27115
90-3-86-3-223
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when outside forces were used to lay
carpet in 'Store 1' on December 1, 1984 (System File M-117/013-210-52).
(2) The Agreement was further violated when the Carrier did not give
the General Chairman prior written notification of its plans to assign said
work to outside forces.
(3) Because of the aforesaid violations, B&B Foreman R. T. Branting
and Carpenters K. E. Boardman, J. D. Shepard and J. C. Wooten shall each be
allowed pay at their respective straight time rates for an equal proportionate
share of the forty-one (41) man-hours expended by outside forces in performing
the work referred to in Part (1) hereof."
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.
The instant Claim rises as a result of Carrier's contracting out the
work of installing carpeting at one of Carrier's office buildings in Omaha,
Nebraska. Carrier failed to notify the General Chairman of its intention to
contract out.
While we are of the opinion that there has been sufficient evidence
that the work at issue is reserved to Claimants by contract and practice, we
have generally taken the position that fully employed Claimants do not receive
pay even when Carrier fails to notify the General Chairman of its intent to
use outside forces, as was the situation in this instance.
Form 1 Award No. 28572
Page 2 Docket No. MW-27115
90-3-86-3-223
We note, too, that there is some confusion in the record as to when
the outside contractor, Ancona Brothers, performed the work in question. During the handling of this dispute on the property, the Organization alleged
that the occurrence took place on December 8, 1984. Correspondence from the
Carrier indicates that Carrier records showed that the work was performed on
December 1, 1984. The Organization thereafter revised its Claim to reflect
the date documented in Carrier records.
Accordingly, we now order that the matter be remanded to the parties
for a determination as to when the incident in question occurred and whether
Claimants were employed on that date. As noted above, if it is determined
that Claimants were fully employed, no monetary remedy shall issue.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e r - Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1990.