Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28989
THIRD DIVISION Docket No. MW-27411
91-3-86-3-652
The Third Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces to perform paving work on crossings in Tucson Yards on December 12 and
14, 1984 and when it assigned outside forces to remove, haul and replace track
subgrade material on Track No. 2 at the Fueling Station in Tucson Yards on
December 26, 27 and 31, 1984 and'January 2, 1985 (System File MofW 152-1024).
(2) The Carrier also violated Article IV of the National Agreement
of May 17, 1968 when it did not give the General Chairman advance written
notice of its intention to contract said work.
(3) As a consequence of the aforesaid violations, Messrs. L. C.
Rounsaville, G. L. Nelson, C. H. Rowland and C. Spychalski shall each be
allowed an additional forty-eight (48) 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 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.
on December 12 and 14, 1984, Carrier contracted with an outside
Contractor to perform paving work at two grade crossings in the Tucson Yards.
On December 26, 27, 31, 1984, and January 2, 1985, it contracted with an
outside firm to remove and replace sub-grade material on Track 2 at the
fueling station in the Tucson Yards.
Form 1 Award
No.
28989
Page 2 Docket
No.
MW-27411
91-3-86-3-652
The organization contends that Carrier violated the May 17, 1968,
National Agreement by failing to notify the General Chairman of its intent to
subcontract work coming under the Scope of the Schedule Agreement (as is
required by Article IV, Contracting Out).
Carrier contends that the work in question is not work exclusively
reserved to the Organization at the location where it was being performed
(Tucson, Arizona); consequently, Carrier was under no obligation to notify the
General Chairman of its intent to subcontract the work and the instant claim
has no merit.
This Board has reviewed the record, together with many Awards on the
issue submitted by each side. A review of this material reveals that the
more reasoned Awards require that even though the work in question is not work
exclusively reserved to employees represented by the Organization, but is work
generally performed by them, the General Chairman should he notified of Carrier's intent to subcontr
This review also compels this Board to conclude that in instances
where as here, Claimants are fully employed, the failure to notify the General
Chairman of the intent to subcontract cannot be translated into a monetary
award. This Board has stated many,times that a sustaining Award without a
penalty against Carrier for violating the Agreement is a hollow victory. The
Board, however, does not have the authority to award monetary damages where no
contract authority exists to support it. That is the situation we find ourselves in in this case.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
6
;.0',
ancy J. -Executive Secretary
Dated at Chicago, Illinois, this 24th day of September 1991.