NATIONAL RAILROAD ADJUSTMENT BOARD

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned outside forces (Art Hathaway) to cut brush on the right-of-way between Mile Posts 23 and 26 on the KCS main line in the vicinity of Grandview, Missouri on May 27, 1987 (System File 013-31-320 (228)).

(2) The Agreement was further violated when the carrier failed to give the General chairman advance written notice of its intention to contract out said work as required by Article IV of the May 17, 1968 National Agreement.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Messrs. L. Favoroso, M. Herman, C. Esteban, J. Buchanan, H. Swinney, B. Wilkins, L. Darity, A. Cezar, J. Brewer and S. Johnson shall each be allowed eight (8) hours of pay at their respective straight time rates."

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe and 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 issue is whether the Carrier, on May 27, 1987, violated the Agreement when it contracted out work to outside forces instead of using maintenance of way forces, that work being cutting brush on the right-of-way between Mile Posts 23 and 26 in the vicinity

of Grandview, Missouri, which the Organization asserts is customarily and traditionally performed by the maintenance of way forces.

The organization contends that the Carrier failed to notify the General Chairman of its plan to contract out work as required by the Agreement; the claimants were qualified, willing, and available to perform; and all of the work involved is encompassed within the scope of the agreement between the parties.

The Carrier contends that the Scope Rule between the parties is general in nature and does not provide exclusive rights to the work in question. The Carrier argues that the right-of-way mowing and clearing of brush has never been exclusively performed by maintenance of way employees, and, in fact, has been performed by different methods and a variety of persons over a long period of time.

This Board has thoroughly reviewed the lengthy record and we find that the Carrier did not give the organization the proper notice that is required before the Carrier contracts out work that is generally performed by Maintenance of Way employees. Therefore, the claim will be sustained.

Article IV of the May 17, 1968, National Agreement states in part:

"Article IV -- Contracting Out

In the event a carrier plans to contract out work within the scope of the applicable schedule agreement, the carrier shall notify the General Chairman of the organization involved in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less that 15 days prior thereto.

If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the carrier shall promptly meet with him for that purpose. Said carrier and organization representatives shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached the carrier may nevertheless proceed with said contracting, and the organization

Moreover, on December 11, 1981, in a letter to the Organization's president, the Carriers reaffirmed their position and stated:

"The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employees."

The record makes it clear that the Carrier failed to give the Organization the proper notice. The Carrier's unilateral action in prematurely contracting out the work was in violation of Article IV of the May 17, 1968, National Agreement. Since the work was improperly contracted out, the claims for pay must be sustained. However, a review of the record reveals that although the claim is for eighty man hours, the actual number of man hours worked by the outside contractor was twenty-four man hours of pay, and that amount shall be equally divided among the Claimants.

A W A R D