Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28918
THIRD DIVISION Docket No. MW-26894
91-3-85-3-667
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:
(National Railroad Passenger Corporation - (Amtrak)
Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that
(1) The Carrier violated the Agreement when, without prior notice to
or discussion and agreement with the General Chairman, it used outside forces
to construct a switching yard at Tampa, Florida beginning in January, 1984
(System File C-4(10)-AMTRAK/BMWE-TC-046).
(2) Foreman S. M. Chavez and Trackman W. K. Collins shall each be
allowed pay at their respective straight time rates for an equal proportionate
share of the total number of man-hours expended by outside forces in performing the work referred to
April 27, 1984."
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.
According to the Organization's Submission, Carrier contracted with
an outside concern, Amtrac Railroad Construction Company, to construct a
switching yard at Tampa, Florida. Six (6) tracks, five (5) switches and a
crossover, amounting to approximately one mile of track, were constructed.
Claimants were assigned as Foreman and Trackman, respectively, at Hialeah,
Florida, when this dispute arose.
Form 1 Award
No.
28918
Page 2 Docket
No.
MW-26894
91-3-85-3-667
The organization asserts that Carrier did not give the General
Chairman fifteen (15) days' advance notice of its intention to contract out
the work in question as required by Rule T, which reads:
"RULE T. CONTRACTING OUT
1. In the event the Carrier plans to
contract out work within the scope of the
schedule agreement, the Chief Engineer shall
notify the General Chairman 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.
2. If the General Chairman requests a
meeting to discuss matters relating to the said
contracting transaction, the Chief Engineer or
his representative shall promptly meet with him
for that purpose. The Chief Engineer or his
representative and the General Chairman or his
representative shall make a good faith attempt
to reach an understanding concerning said
contracting, but if no understanding is reached
the Chief Engineer may nevertheless proceed with
said contracting, and the General Chairman may
file and progress claims in connection therewith.
3. Nothing in this Rule 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 to
discuss and if possible reach an understanding
in connection therewith."
It is further argued by the Organization that Claimants were fully
qualified and available to perform the work involved here had the Carrier
afforded them an opportunity to do so.
Carrier argues, first, that inasmuch as the Organization was aware of
the contracting out project prior to February 29, 1984, its claim received by
Carrier on April 30, 1984, exceeded the time limitations prescribed by Rule T
of the Agreement. Moreover, Carrier notes that the Organization modified its
claim before this Board in an attempt to extricate itself from this timeliness
defect. Second, and notwithstanding its procedural allegations, Carrier
contends that no advance notice was given to the Organization because Carrier
had no employees at that location and the property was neither owned nor
leased by Amtrak at the time the work began. To the contrary, Carrier submits, the lease was not sig
Form 1 Award No. 28918
Page 3 Docket No. MW-26894
91-3-85-3-667
points out that it agreed by letter dated February 29, 1984, to meet with the
General Chairman to discuss the contracting out project which was already
underway at Tampa, and that after several meetings and conversations, the
parties could not reach an accord. Finally, Carrier maintains that the two
Claimants could not possibly have performed the work in question. Carrier
argued it is not required to dissect or fragment a contracting out project
into several components so that some employees may perform part of the work.
In any event, since Claimants were fully employed during the claim period, no
remedy should issue, Carrier insists.
After careful review of the record in its entirety, it is our view
that Carrier's timeliness objection is indeed dispositive of the instant case.
Carrier has maintained that the instant claim, received on April 30, 1984, is
untimely because it is beyond the 60 day time limit, whether calculated from
the date the project began or the date the Organization had knowledge of the
contracting out. Furthermore, Carrier argues that the claim is not a continuing claim because it was
alleged failure to give advance written notice of its intention to contract
the work in question.
The weight of Board precedent on the subject of continuing claims
clearly favors the Carrier's position. Although the Organization argued that
the claim herein is a continuing claim since the work in question was being
performed by an outside concern both prior to and subsequent to the filing of
the claim, that contention has been rejected in prior Awards dealing with the
subject of contracting out, as well as in many other kinds of disputes. See
Third Division Awards 26689, 23953, 21376 (contracting out); also see Second
Division Awards 11515, 11471; Third Division Awards 27327, 26328, 26124, 20631.
While the claim presently before us may have had potential continuing liability, it is one which
occurred on a date certain; that is, the date the Carrier subcontracted out
the disputed work without notifying the Organization. The Organization had
sixty days from that initial triggering event to file a claim, and did not do
so. The claim, therefore, must be dismissed on that basis.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. r -'Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1991.