Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28612
THIRD DIVISION Docket No. MW-28675
90-3-89-3-27
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces (Pat Baker Construction Company) to perform grade stabilization and
dirt work at Harlingen, Texas from December 7, 1987 through January 15, 1988
(System File MW-88-33/468-57-A).
(2) The Carrier also violated Article 36 when it failed to give the
General Chairman timely and proper advance written notice of its intention to
contract said work.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, furloughed Machine Operators G. M. Lambert, J. D. Mosby,
A. R. Barak, 0. Gillum and R. L. Dlabaj shall each be allowed two hundred
forty (240) hours of pay at their respective straight time rates and sixty
(60) hours of pay at their respective time and one-half overtime 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 emplqYe,or employes involved in this
'tspute are respectively carrier and employes within the meaning of the
'way 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 fight of appearance at hearing thereon.
On November 2, 1987, the Carrier wrote to the General Chairman as
follows:
Form 1 Award No. 28612
Page 2 Docket No. MW-28675
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"Please accept this as Carrier's Notice
pursuant to Article 36 of the BMWE Agreement
of our intent to contract for labor, equipment
and material to perform grading, stabilization
and dirt work to accommodate construction of two
yard tracks at qarlingen, Texas.
The Carrier's forces_ will perform,all track
work." °
On November 5, 1987, the General Chairman replied in pertinent part
as follows:,
"Please be advised we cannot agree to contractors performing this Maintenance of Way work
and request a conference to discuss this notice.
Please be advised that it is our position
that the Carrier has no intent to engage in
serious good faith discussions with the Organization concerning this notice.
It is our position that the Carrier has
committed itself to an outside contractor prior
to serving this notice, therefore this is not a
timely notice.
Please be advised that during the conference
we will request a copy of the contract between
the Southern Pacific Transportation Company and
the outside contractor.
It is our position that Carrier employees
have the experience to perform this work and the
equipment is owned by the Carrier or can be
leased in the Harlingen area with little effort
Article 36 reads as follows:
"CONTRACTING OUT
In the event this carrier plans to contract
out work within the scope of the applicable
schedule agreement, the carrier shall notify the
General Chairman of the organization involved in
writing as far in advance of the date of the
contracting transaction as is practicable and in
any event not less than 15 days prior thereto.
Form 1 Award No. 28612
Page 3 Docket No. MW-28675
90-3-89-3-27
If the General Chairman, or his representative, requests a meeting to discuss matters
relating to the said contracting transaction,
the designated representative of the carrier
shall promptly meet with him for that purpose.
Carrier and organization representatives shall
make a good faith attempt to reach an understanding concerning said contracting, but if no
understanding is reachedwthe carrier may nevertheless proceed with said contracting, and the
organization may file and progress claims in
connection therewith.
Nothing in this Article shall affect the
existing rights of either party in connection
with contracting out. Its purpose is to require
the carrier to give advance notice and, if requested, to meet with the General Chairman or
his representative to discuss and if possible
reach an understanding in connection therewith."
As required, the parties met to discuss the proposed contracting out
of work. According to the Organization and not otherwise disputed, the Organization alleged "bad fai
arrangement had already been completed for the services of the outside contractor. The Carrier faile
As stated in Third Division Award 28611, "Where work is 'within the
scope of the applicable schedule agreement,' the parties are required to make
'a good faith attempt to reach an understanding concerning such contracting."'
In the Board's view, the record supports the Organization's contention that
the work involved was of a nature regularly performed by the Claimants. The
Carrier argues that the Organization cannot show that it has performed such
work exclusive of all others. Whether or not such may be the case, the test·of exclusivity, a
classes, is not appropriate here. Rule 36 required no such test.
In sum, the Carrier has failed to demonstrate why the work could not
have been performed by its own forces in a manner satisfactory to the Carrier's requirements.
In sustaining the Claim, the Board directs the parties to meet
promptly to determine the actual number of hours worked by individual employees of the contractor in
Claimants are entitled. In this instance, the Carrier's request to offset
such payment by other compensation is found inappropriate. This is not an
instance where an employee was improperly denied full-time reinstatement;
rather, only a share of a limited number of hours is involved.
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Page 4 Docket No. MW-28675
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A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
"Nancy J. B
vA!
- Executive Secretary
Dated at Chicago, Illinois, this 16th day of November 1990.
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