The Third Division consisted of the regular members and in addition Referee Edwin H. Senn when award was rendered.
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and emplcvee 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.
By Letter dated September ', 1990, the Carrier informed the Organization of its " ... intent to solicit bids to cover the remodeling of the interior and painting of the exterior of the Ice rHouse
located in Council Bluffs, Iowa." The Organization objected =o that action by Letter dated September 13, 1990 further requesting "... a conference be scheduled and held prior to the work being assigned to and performed by a contractor, for the purpose of discussing the matters relating to said contracting transaction." By letter dated September 19, 1990, the Carrier agreed to meet "at our next conference on contracting notices." Conference was held on October 22, 1990, without resolution.
With respect to the type of work involved, Awards decided on this issue have denied similar claims protesting the Carrier's contracting out of this type of work. See e.g., Third Division Awards 28610, 29186, 29611. With respect to the kind of work involved and the Carrier's general ability to contract out such work, those Awards are not palpably in error and shall be followed.
Therefore, we find that the Carrier did not meet its notice and conference obligations imposed by Rule 52(a). See Third Division Award 31288 and Awards cited therein.
Because the Carrier failed to meet its notice and conference obligations under Rule 52(a), under the circumstances the claim shall be sustained, but only for those Claimants on furlough at the time the contractor performed the work. See Third Division Awards 31031 and 31025. We do not believe this is a situation calling for payment of the claim for Claimants who were working on the dates in question. Compare Third Division Award 30823 where the Carrier overtly misled the Organization asking the organization to hold off pending conference while the matter was reevaluated with the possibility that the Carrier's forces would do the work and then contracted out the work without further notice. That is not this case. Here, the correspondence reveals the parties responding in the manner they have in so many of these cases with the same basic notice by the Carrier, protest and request for conference by the Organization, agreement to meet by the Carrier and conference without resolution. Nevertheless, notwithstanding the manner in which this case was treated by the parties and the Carrier's ability to ultimately contract out the work, the notice and conference obligations of Rule 52 (a) remain. This Board cannot change that language. Balancing the foregoing against the wealth of decisions allowing the Carrier to contract out, which decisions are premised upon the Organization's acquiescence in the Carrier's past similar actions, under the circumstances of this case this Board believes a remedy is appropriate because the Carrier failed to meet its mandatory notice and conference obligations imposed by Rule 52(a). But considering the above, that remedy should only be for those Claimants, if any, who were in furloughed status at the time the contractor performed the disputed work.
Third Division Awards 28943 and 29121 cited by the organization do not change the result concerning the remedy. In Award 28943, the remedy was only for furloughed employees. Similarly, in Award 29121, the claimants were in furloughed status. In Third Division Award 29472 cited by the Organization, a remedy was imposed "regardless of the Claimants' alleged assignment to other work" because the Organization had to request a conference on two occasions to get the Carrier to meet and, by the time the conference took place, the work had already commenced. That is not this case. Here, the Carrier met upon the Organization's first request. In short, no aggravating circumstances have been shown in this case to warrant relief beyond those who may have truly lost work opportunities. Form 1 Award No. 31284
The matter is therefore remanded to the parties for a joint check of the Carrier's records to determine the number of hours the contractor performed the work, whether Claimants were on furlough, the length of any such furloughs and whether those furloughs overlapped the time the contractor performed the work in dispute. Only the furloughed Claimants holding seniority at the time the contractor performed the work shall be entitled to relief. Those furloughed Claimants shall be made whole for the number of hours the contractor performed the work.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) be made. The Carrier _s ordered to make the Award effective on or before 30 days folliwing the postmark date the Award is transmitted to the parties.