Parties to said dispute waived right of appearance at hearing thereon.
The organization has raised a timely objection to evidence offered by the carrier de novo in its Submission. None of that evidence will be considered by this Board. The Board's findings are based solely upon the record established on the property.
The basic facts of this case are not in dispute. During September and October 1989, the Carrier utilized its forces to rehabilitate road crossings between Mile Posts AB 157.4 and AB 182.5 on the Plymouth Subdivision of the Florence Division. On September 13, 20, 27, 28, and October 2, 1989, without conducting a meeting between the Chief Engineering Officer and the General Chairman, the Carrier used an outside contractor to pave the prepared crossings as well as the approaches leading to the track structure. Claimants were fully employed at the time.
On October 31, 1989, the Organization submitted a claim on behalf of four employes for the amount of time expended by outside forces in paving the rehabilitated crossings. In its letter, the organization claimed that Carrier had violated Rule 2 of the Agreement between the Parties. Rule 2 reads as follows:
The claim was denied by Carrier on December 10, 1989. In its denial, Carrier maintained that the paving work to restore the highway had been contracted to Hertzog Contracting Corporation under a contract dated June 26, 1989, because carrier's
This is certainly not a case of first impression. The issues before the Board in the instant case have been addressed previously by numerous Awards on this Division, several of which involve the Parties to this dispute. It is well established that under the provisions of Rule 2, Carrier must give the organization timely notice of its intent to contract out work formerly performed by members of the Organization. Moreover, in order to establish a violation of the notice requirement of Rule 2, it is not necessary for the organization to prove exclusive performance of the work in question. As the Board held in Third Division Award 27011:
The record in the instant case clearly shows that Carrier failed to comply with the notice requirement of Rule 2. Carrier admits it made its decision to use an outside contractor in June 1989, a full three months before the work actually began. Accordingly, there was ample time for carrier to comply with Rule 2 had it chosen to do so. As is noted in Third Division Award 28513, failure to give the notice required in Rule 2 prevents the negotiated procedure set forth in that Rule from unfolding.
The second part of the organization's claim--that the paving work at issue has been customarily and historically performed by Maintenance-of-Way employees throughout the railroad industry and is, therefore, scope covered work--has already been addressed in several prior Awards. As the Board held in Third Division Award 29432, there is a mixed practice on this property with respect to the performance of paving work. No evidence on this record suggests that the practice is no longer "mixed." Accordingly, the Board does not find that the work at issue is reserved to Maintenance-of-way employees.
With respect to the Organization's claim for damages, the Board notes that Awards are divided on this issue. Until recently, most Referees have held that unless the Organization can demonstrate that Claimants have suffered monetary damage as a result of Carrier's failure to comply with the notice requirement of Rule 2, no monetary award is appropriate. However, as the Board noted in Third Divison Award 23928: Form 1 Page 4
" ..The opposing line of cases allege that to limit damages only in such actual losses situations would in effect give a Carrier license to ignore the subcontracting out provision of an agreement because of the absence of actual loss and payment in a matter such as this."
This Board is in agreement with those Awards which seek to prevent granting Carrier such a license. As is noted above, there are several Awards involving the issue and Parties currently before this Board. In Third Division Award 29432 involving the same parties, the Board held that Carrier "violated the Agreement when it contracted out the work without giving notice and engaging in the required discussions." (See, as well, Third Division Awards 29430, 28942 and 28936, also involving these parties.) Accordingly, the Board finds that as of Augus earliest of the aforementioned Awards was issued) Carrier was put on notice by this Board that future failure to comply with the notice provision of Rule 2 will likely subject it to potential monetary damage awards, even in the absence of a showing of actual monetary loss by Claimants (See Third Division Awards 29034, 29303,and 28513.) Since the events of the instant case evolved prior to August 29, 1991, however, the Board does not sustain paragraph two of the present claim.
