Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28627
THIRD DIVISION Docket No. MW-28773
90-3-89-3-163
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces to pour concrete bases for boilers at the 060 Building in Joliet,
Illinois on August 31, 1987 (System File BJ-10-87/UM-19-87).
(2) The Carrier also violated Rule 6(c) (Article IV of the May 17,
1968 National Agreement) when .it did not give the General Chairman 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, Bridge and Building Carpenter Foreman J. Valek and
Carpenters M. Bachmann and M. Clinton shall each be allowed eight (8) hours
pay at their respective time and one-half 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 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 Claim submitted to this Boakd asserts a violation of both the
Scope Rule and the notice requirements
of
Rule 6(c) (Article IV of the May 17,
1968 Agreement), as amended by a December 11, 1981 Letter of Agreement.
Rule 2 reserves certain work to employees represented by the Organization and it refers to concr
projects of such magnitude and intricacy that cannot be performed by Carrier's
employees may be performed by outside contractors.
Form 1 Award No. 28627
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90-3-89-3-163
The parties have devoted a significant amount of time arguing about
reduction in employee ranks and full employment whereas the Carrier's rights
in this case under Rule 2 must first be addressed. There are also assertions
that certain documents have been delivered to the Board which were not handled
on the property. We have confined our review solely to the appropriate documents of record.
The initial Claim (October 30, 1987) complained that an outside contractor poured concrete bases
according to the Organization, was historically and traditionally done by
B 6 B carpenters. The Carrier responded by stating that it has the right to
contract out work in various situations. The Organization disputed that Rule
6(b) applied in this case.
Unquestionably the Carrier has contracted out a number of projects,
as shown in the record. Further, the Carrier contends that the work in question was merely a "minute
concluded that there is no Agreement requirement to "piecemeal" the work, and
the pouring of concrete is not exclusively reserved to B 6 B carpenters by
practice or tradition. Examples were given.
In response, the Organization conceded that outside contractors have
been used on occasion, but that B 6 B employees have been utilized in most
concrete pouring.
The Organization has the burden of showing a violation of the basic
Scope Rule. This record does not support that burden and we will deny the
Claim in that regard.
As noted above, the Claim before this Board asserts a violation of
Rule 6(c) which requires timely notification to the General Chairman in the
event Carrier plans to contract out work within the scope of the Agreement.
However, the initial Claim cited only Rule 2(a). The February 20, 1988 appeal
also cited Rule 6(b). The June 13, 1988 appeal-does not cite Rule 6(c) nor
does the January 22, 1989 letter. On March 20, 1989, the Organization does
state that "...the General Chairman should have been notified, so that We
could place Our members in line for the work involved,... But that statement
is not sufficient to place Carrier on notice that there was an alleged Article
6(c) violation especially since prior correspondence had not raised the issue.
Less than three weeks later the Organization advised the Third Division - the
Board of intention to file an Ex Parts Submission.
We find that the notification portion of the Claim submitted to us
was not handled and/or considered on the property. and thus cannot be raised
here in the first instance. On August 9, 1989, the Organization argued that
the Carrier failed to raise on the property the fact that the Organization
never asserted a violation of "Rule 6 - Contracting Out Work." The Carrier
did respond to Rule 6(b) assertions and it was not required to respond to
assertions of a Rule 6(c) violation because that issue was never raised.
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Form 1 Award No. 28627
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90-3-89-3-163
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Wr - Executive Secretary
Dated at Chicago, Illinois, this 17th day of December 1990.