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 employe 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.
During June 1990, the Carrier contracted with Case Power & Equipment of Jacksonville, Florida, to perform extensive maintenance work on a backhoe used by its M Form 1 Award No. 30019
Structures Department. This work was contracted out without advance notice to the organization. According to the organization, this work took 150 man-hours and consisted of repacking at least ten hydraulic cylinders, replacing pins and bushings in the dipper boom and bucket, swing tower, swing cylinders and boom base, tightening tractor mounting bolts, replacing the operator's seat, repairing the backhoe valve bank, the brake system, and differential lock, the clutch, the steering tanks, reworking the front end and rebuilding the engine. The organization asserts the work of repacking, replacing, reworking, rebuilding, and repairing of Maintenance of Way roadway equipment is reserved to employees covered by the Agreement. It claims the carrier, when it contracted out this work, violated Rule 2 of the Agreement, which reads, in pertinent part, as follows:
The Carrier responds by stating it has been the practice for at least ten years to contract out repair work on tractors and backhoes when such work was extensive. It submits there was already a considerable amount of overtim Waycross Shop during this time period and that the present force would have been unable to absorb the additional work.
Even it there had been a violation of the Rule, argues the Carrier, the Claimants would not be entitled to the remedy sought because they were already fully employed. Furthermore, if the work were to be performed on overtime, the Carrier insists the Claimants would not have been eligible. It notes that Claimant Rutherford had been removed from the overtime board due to his failure to protect an earlier job. It also states Claimant Rowell had removed himself from the overtime board, not desiring any extra work.
The Carrier does not deny that the work involved is work belonging to covered employees. At issue is whether the Carrier was privileged to contract out this work without notice to or Form 1 Award No. 30019
conference with the Organization. In this regard, Rule 2 is clear and unambiguous. Covered work may not be contracted out without following the procedures in the Rule. Because the Rule is clear and unambiguous, the Carrier's reference to past practice is irrelevant. We must enforce the Rule as it is written.
Although the Carrier argues it lacked sufficient manpower to perform this work, we consider this to be an argument it should have made to the Organization to justify its need to contract out. This is precisely why the Rule requires advance notice. It gives the parties an opportunity to consider the Carrier's reasons for contracting out, as well as the Organization's interests with regard to its members. The Carrier, however, skipped over this step and, in doing so, violated the Rule.
The Carrier's objections regarding awarding relief to these Claimants is well taken. Had the work been performed on an overtime basis, the Claimants would not have been eligible for it. On the other hand, they would not have earned any more had the work been performed at straight time. Although we consider these to be valid arguments, we note that the violation of the Agreement occurred because the Carrier failed to consult with it prior to contracting out. It is certainly conceivable that, under the circumstances, been agreeable to allowing the Carrier to contract out the work. But because the Carrier failed to follow this procedure, we must afford a remedy. Accordingly, we deem it appropriate to award the Claimants ten per cent (10%) of the time worked by the contractor or 7.5 hours' pay at the straight time rate for each Claimant.