C:\MYDOCU~1\SCHEDU~2\3-29432.htm

Form 1 NATIONAL 7.4 IL ROAD ADJUSTMENT BOARD Award No. 29432 THIRD DIVISION Docket No. MW-29481 92-3-90-3-416 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 CLAIM: "Claim of the System Committee of the Brotherhood that: (1) the Carrier violated the Agreement when, without a conference having been held between the Chief Engineering Officer and the General Chairman, as required » maintenance work (reconditionilg road crossings) beginning on January 26, 1989 at ?tile Post AN 592.7 on the 7homasville Subdivision of the Tampa Division and continuing on road crossings across the Thomasville Subdivision [System File 37-SCL-B9-16/12(89-476) SSYj. (2) As a consequence of the aforesaid violation, Messrs. W. J. Hornsby, R. L. Miller, D. E. Steedley, W. A. Johnson, K. S. Austin, A. Long, J. M. Eunice, C. ..'kite, Jr. and J. D. Ray shall each be allowed pay at their respective rates far an equal proportionate share of the total number of man-hours expended by the outside forces performing the work outlined 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 factual situation in this claim is not in dispute. Without first nott=ying the Organization and conducting a meeting between the Chief Engineering Jfficer and the General Chairman, the Carrier engaged an outside contractor to perform paving work beginning on January 26, 1989, on the Thomasville Subdivision of the Tampa Division at various road crossings. The paving work was part of the reconditioning of these crossings; all other work involved in the reconditioning was performed by employees subject to the Agreement. All of the Claimants were fully employed during the time the outside contractor performed Form 1 Award No. 29432 Page 2 Docket No. MW-29481 92-3-90-3-416 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 opportunity to do so. The Carrier, ~)n the other hand, contends that this is work which has historically been per`irmed by other than Maintenance of Way employees, and is not work which is exclusively reserved for them under the Agreement.

The following Rules :re pertinent to a resolution of this dispute:

"Rule 1 Scope

These Rules cover the hours of service, wages and w)r"'ing condit_ons for all employees of the 'laintenance ,)f Wav and Structures Department as listed ~y ~nbdepartments in Rule S - Seniority Groups and RanKS, ,and otner employees who may subsequently be employed in :aid Department, represented by Brotner'i~od )t '1a:ltenance of Way Employees.

Rule 2 C)ntracting

This Agreement requires that all maintenance work in the Aatitenance of Way and Structures Department is to be performed by employees subject t) this Agreement except t_ is recognized that, in specific instances, certain work that is to be performed requires sp~-(,iaL s<iLls not possessed by the employees ,and tie use of special equipment not ow or av.atiabLe to tie Carrier. ?n such instances, the Chief 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 Organization notice under Rule 2 on numerous occasions. Form 1 Award No. 29432
Page 3 Docket No. MW-29481
92-3-90-3-416

Numerous prior Awards of the Board have held that issues of exclusivity are not a defense to notice presented to the Board is thus not whether the Organization has demonstrated exclusivity, but whether paving work is covered by the Agreement, making the provisions of Rule 2 applicable. Since the evidence shows that the Carrier and the Organization have met and conferred in the past on other paving projects and that employees subject to the Agreement have performed this work in the past, the Carrier by i:s conduct has implicitly conceded that the work is a proper subject of contracting discussions.

The Board thus conc-_-,des that paving work is covered by the Agreement and that the Carrier is bound Dy the notice and meeting requirements of Rule 2. .accordingly, we find that =he Carrier violated the Agreement when it contracted out the work wit
The remaining issue _s the question of damages. The record is undisputed that Claimants were iui:- e result of the action claimed. Accordingly, Paragraph One of the Statement of Claim is sustained, but Parasraph Two, which requests a monetary remedy, is denied.

A W A R 0

Claim sustained in accordance with the Findings.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest:

Nancy J. - Exezutive Secretary

Dated at Chicago, Illinois, :-is 21st day of October 1992.