Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31777
Docket No. MW-30407
96-3-92-3-149
The Third Division consisted of the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former
( Louisville and Nashville Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside
forces (Dagger & Dagger Contractors) to perform Bridge and Building
Subdepartment work (set forms and pour concrete) at the northwest end
of the Round House at Radnor Yards, Nashville, Tennessee on December
21, 26, 27 and 28, 1990 [System File 11(5) (91)112(91-422) LNR].
(2) The Carrier further violated the Agreement when it failed to
give the General Chairman fifteen (15) days' advance written notice of its
intent to contract out the work as required by Article IV of the May 17,
1968 National Agreement.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants G. C. Stroud, C. Gay and R C. Robinson shall
each be allowed eight (8) hours' pay at their respective straight time rates
of pay for each day worked by the outside contractor."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 31777
Page 2 Docket No. MW-30407
96-3-92-3-149
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.
Parties to said dispute were given due notice
of
hearing thereon.
There is no dispute that the Carrier assigned outside forces to set forms and pour
concrete at Radnor Yards, Nashville on December 21, 26, 27, and 28, 1990. While there
is a disagreement as to whether the General Chairman was orally notified in advance
of
this contracting, no dispute exists as to the Carrier's failure to provide advance
notification to the General Chairman
in
writing, as required by Article IV
of
the May
17, 1968 Agreement.
Third Division Awards 30977 and 31597, involving the same parties, cover
virtually identical issues and sustained the Organization's claims. Third Division
Award 30977, also involving the same parties, concerns a different type
of
project
(installing and repairing doors instead
of
pouring concrete). The issues, however, are
the same as those under review here. Award 30977 states as follows:
"Due to Carrier's failure to afford the Organization 15 days notice
and opportunity for discussion,. . . these claims will be sustained. B&B
Mechanics worked on these doors in the past and had a colorable claim to
the work, ...."
In this instance, Awards 30977 and 31597 demonstrate that the Claimants had
even more than a "colorable claim" to the concrete work. The Carrier's reference to
the Organization's need to prove its "exclusive" right to the work has been repeatedly
found inappropriate in reference to contracting claims; further, as pointed out by the
Organization, there is no record
of
this issue being raised on the property.
AWARD
Claim sustained.
Form 1 Award No. 31777
Page 3 Docket No. MW-30407
96-3-92-3-149
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 20th day
of
November 1996.