The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
The Claimants held seniority as Track Laborers in the Maintenance of Way and Structures Department were furloughed on the claim dates. Beginning on March 18, 1991, and apparently covering the period at least through .April 8, 1991, the Carrier contracted with Steel Processing to remove tie plates by hand with the use of claw bars, depositing the tie plates in gondola cars, pulling spikes and sorting the spikes, handling wooden cross ties, all work performed at Danville, West Virginia.
Prior to instituting the contract with Steel Processing, the Carrier gave the Organization the requisite contractual notice. In addition. the Carrier recalled six senior Maintenance of Way employees to perform the disputed work alongside the contractor's forces. Even though some of the members of the Organization performed the subject work, the Organization believed the Claimants were entitled to perform the work instead of the contractor's employees by virtue of Rule 1. Scope; Rule 2. Seniority: Rule 66, Classification of Work; and, in particular, Rule 83, Contracting Work. Specifically, Rule 83, Contracting Work Paragraph (b) reads:
The Organization argues that the work performed requires no special equipment and is customarily performed by Maintenance of Way employees as evidenced by the fact that six senior employees were recalled to perform the work. The Organization also argues that the Carrier's proffered defense, that it gave proper notice to the the Organization, does not indemnify the Carrier against the present claims. The Organization argues that mere notice cannot defeat the contractual requirement that senior employees perform work reserved for those employees in both the Scope Rule and the Classification of Work Rule.
Furthermore, the Organization argues that the record is devoid of any evidence of the Carrier's good faith in this matter. Nor does the record contain any denial by the Carrier that the Claimants were unavailable, unqualified and unwilling to perform the work had they been afforded the opportunity to do so.
The Organization finally argues that the Claimants are entitled to money damages because all were furloughed on the claim dates and all lost the opportunity to perform their rightfully reserved contractual work.
Besides defending the claim by asserting that proper notice was given and that six senior Maintenance of Way employees were paid to perform some of the work, the Carrier also argues that the Organization cannot rightfully claim the disputed work because it does not exclusively perform that work system-wide. Therefore, the Carrier urges us to dismiss the claim.
After considering the parties' arguments, we find that the Carrier violated the Agreement by impermissibly contracting out bargaining unit work in violation of Rule 83(b). Merely giving notice of its intent to contract out work is insufficient to protect the Carrier from any liability caused by its decision to hire an outside contractor to perform contractually reserved track work. Here, there is no dispute that the work belongs to the Organization, as evidenced by the fact that the Carrier recalled six senior Maintenance of Way employees to perform the very work in question.
Moreover, Rule 83(b) specifically limits the Carrier's ability to contract out work if, in fact, it has forces available to perform the work in question. Because we have determined that a violation occurred, we next must formulate an appropriate remedy. Form I Award' o. 31760
Any remedy associated with a conti -ting · ~lation is equitable in nature. Therefore. in order to be fair to the Claimants, and the -, ..rrier, we will remand this matter to the property for the parties to determine the amount of damages in accordance with the following guideline.
The Claimants will be paid for any work performed by the contractor on the claim dates for which no other contract employees performed any of the disputed work. In other words, the remedy will be fashioned considering the dates on which the contractor performed the work and no claim will be allowed for any date on which the six recalled senior Maintenance of Way employees performed any of the disputed work at Danville, West Virginia.
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 .ward is transmitted to the parties.