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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29430 THIRD DIVISION Docket No. MW-29427 92-3-90-3-357 The Third Division consisted of the regular members and in addition Referee Hugh G. Duffy when award was rendered. (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (CSX Transportation, Inc. (former Seaboard System (Railroad) STATEMENT OF CLAP!: "Claim of the System Committee of the Brotherhood that: (1) The ~,greement was violated when the Carrier, without conferring and reaching an understanding with the General Chairman as required by Rule 2, assigned outside forces (tennis Crews) to perform road crossing maintenance work (paving) on road crossings on the Thomasville Subdivision between Dupont, Georgia (Milepost AN 622.3) and Valdosta, Georgia (Milepost AN 649.8) beginning March 27, 1989 [Syst (2) As a consequence of the aforesaid violation, Section Foreman M. C. Roberts, Trackmen B. Hawkins, Jr., E. Lee, Jr., J. L. Berry and L. D. Peeks shall each be compensated at their respective straight time rates for an equal proportionate share of the total number of man-hours expended by the outside contractor performing the work in Part (1) above." 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 underlying Eactual situation in this Claim is not in dispute, Without first notifying the Organization and conducting a meeting between the Chief Engineering Officer and the General Chairman, the Carrier engaged an outside contractor to perform paving work beginning on March 27, 1989, on the Thomasville Subdiiision of the Tampa Division between Dupont, Georgia, and Valdosta, Georgia. The paving work was part of the reconditioning of these crossings; all other work involved in the reconditioning was performed by employes subject to the Ag during the time the outside contractor performed the work. Form 1 Award No. 29430 Page 2 Docket No. MW-29427 92-3-90-3-357 The Organization contends that paving work has been traditionally and historically assigned to and performed by employees subject to the Agreement, and that Claimants were equipped, fully qualified and readily available to perform the work if given The Carrier, on the Dther hand, contends that this is work which has historically been performed by other than Maintenance of Way employees, and is not work which is excLusivei: reserved for them under the Agreement.

The fo1_:,ring pules :re pertinent to a resolution of this dispute:

"Rule L Scope

These

RUicS

cover the hours of service, wages ant working corsitions for all employees of the `!ai~tenance

,>r

.:ay and Structures Department as iii-ed by Subdepartments in Rule 5 - Seniority ,:coups ,and Ranks, and other employees who may subseQuencly be employed in said Department, repre;e

Rule 2 - Contracting

This agreement requires that all maintenance work in _ne `taintenance of Way and Structures Department :s

be perf)rned by employees subject to this Agreement exce=: it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employe and the use of special equipment not owned by or availabie to the Carrier. In such instances, the Ch Engineering Officer and the General Chairman, will confer and reach an understanding setting forth the conditions under which the work will be performed

...."

The evidence of record demonstrates a mixed practice on this property with respect to the performance of paving work. It has been previously performed by members subject contracted out by the Carrier. The Carrier contends essentially that it need not comply with the notice and meeting requirements of Rule 2 if the Organization has not demonstrated exclusive rights subject to the agreement have performed this work in the past, and that It has also given the Or;aniz,cton notice under Rule 2 on numerous occasions. Numerous prior Awarcs of the Board have held that issues of exclusivity are not a -efense to not presented to the bard is thus not whether the Organization has demonstrated exclusivity, but whether paving work is covered by the Agreement, making the provisions of Rule 2 applicaole. Since the evidence shows that the Carrier Form 1 Award No. 29430
Page 3 Docket No. MW-29427
92-3-90-3-357

and the Organization have met and conferred in the past on other paving projects and that employ the past, the Carrier by its conduct has implicitly conceded that the work is a proper subject of contracting discussions. The Board thus concludes that paving work is covered by the Agreement and that the Carrier is bound by the notice and meeting requirements of Rule 2. Accordingly, we find that the Carrier violated the Agreement when it contracted out the work with The remaining issue is the question of damages. The record is undisputed that Claimants were ful result of the action claimed. Accordingly, Paragraph One of the Statement of Claim is sustained, but Paragraph Two, which requests a monetary remedy, is denied.

A W A R D

Claim sustained in accordance with the Findings. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J. Wr - Executive Secretary Dated at Chicago, Illinois, this 21st day of October 1992.