Parties to said dispute waived right of appearance at hearing thereon.
As noted in the claim, a contractor was used to remove brush and trees that threatened the Carrier's signal lines. The work was performed shortly after a severe ice storm struck the involved area.
The Organization contends that the disputed work is reserved to the signal employees by virtue of the Scope Rule of the Agreement. The Rule lists the following among "...all other work recognized as signal work:
The Organization seeks an aggregate 1,216 hours of pay for the six named Claimants.
On the property, the Carrier did not strenuously dispute that tree and brush removal impairing the operation of the signal system falls within the Scope of the Agreement. Rather, the thrust of its position was that exigent circumstances resulting from the ice storm as well as the need for specialized skills and equipment justified its use of the contractor. Moreover, Carrier maintained that three Signalmen worked along with the contractor in the brush removal portion of the work. Carrier also says the claim is clearly excessive since contractor personnel were on the property only a total of 286 hours.
In reviewing this matter, we have confined ourselves, as we must, to considering only the evidence and arguments developed by the parties during their handling of the dispute on the property. Therefore, new information contained in the Submissions to this Board has been disregarded.
After careful consideration of the on-property record, we find that Carrier violated the Scope Rule. As noted above, absent unusual circumstances, scope coverage of the work is not seriously disputed by the Carrier. Indeed, in Third Division Award 26676, Carrier cited the above excerpted portion of the Scope Rule in taking the position that brush removal impacting the signal system accrued to the employees of the Signal Department. It took this position in successfully resisting a claim to similar work by its Maintenance of way employees. Form 1 Award No. 30645
Of critical significance in this dispute is the alleged need for specialized skills and equipment to remove large trees and tree branches. The Organization provided photographic evidence of the work areas to bolster its assertion that no such skills or equipment was necessary. With the issue thus joined, it was incumbent upon the Carrier to establish its affirmative defense by submission of probative evidence to support its assertions. On this record, Carrier failed to do so. Consequently, the violation issue must be resolved in the Organization's favor.
Regarding remedy, the Organization provided no rational explanation for its claim of 1,216 hours of compensation for the 286 hours worked by the contractor's employees. Moreover, it is essentially unchallenged that three signal employees worked with the contractor throughout. While the Organization alleges each Claimant suffered a lost work opportunity, no cognizable loss has been demonstrated by the on-property record. These circumstances significantly mitigate the Organization's claim.
The Organization cited Public Law Board No. 4603, Award 5, involving these same parties under very similar circumstances, as precedent for granting an appropriate monetary award. The contracted work there spanned several months versus the six-day period here. Following the rationale expressed in Award 5, we award the nominal sum of $50.00 to each Claimant.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties. Form 1 Award No. 30645