(1) The Agreement was violated when the Carrier assigned or otherwise permitted outside farces (Nyleve Corporation Company) to perform repair work on the Pattenburg Tunnel, Pattenburg, New Jersey beginning August 5, 1991 and continuing (System Docket MW-2422).
(I) As a consequence of the violation referred to in Part (1) above, the 16 Claimants * listed below shay each be allowed ten (10) hours' pay, at their respective straight time rates, for each day worked by the outside forces beginning August 5, 1991 and continuing until the violation ceases.
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.
On March 14, 1991, the Carrier furnished the Organization notice of its intent to contract out specified work in connection with the rehabilitation of the Musconetcong Tunnel, Pattenburg, New Jersey, on the LeHigh Line of the Philadelphia Division of the LeRigh Seniority District. There is no dispute that the Carrier complied with the notice requirements of the Agreement.
The Claimants were assigned to their respective positions and were performing service for the Carrier within the New Jersey Division at the time the work in question was performed by the outside forces.
The Carrier's letter of notice explained that the project required specialized equipment which the Carrier did not possess, and which Carrier forces were not skilled to operate. It also explained that time constraints prevented the Carrier from piecemealing any small portion of the project for which Carrier Maintenance of Way forces were equipped and/or qualified.
The Organization asserted that its members had performed this work in the past and attached a statement from members that they had performed concrete work in the same tunnel in 1988. The Organization took the position on the property that the Carrier violated the December 11, 1981 HopkinsBerge Letter of Agreement.
The Carrier denied the appeal and reiterated its earlier statement of reasons. The Carrier added that the monetary claim was excessive as Claimants were fully employed at the relevant times and therefore not monetarily aggrieved.
The issue in this case is whether the Carrier violated the Agreement by contracting out work to outside forces to perform the tunnel repair work. Form 1 Award No. 31827
The Organization argues that work of the character involved in the instant case is encompassed within the Scope of the Agreement and has customarily and historically been performed by Carrier forces; the Carrier's contentions regarding equipment availability are erroneous; and the Carrier's piecemeal argument is without merit.
The Carrier argues that the disputed project involved special skins and equipment not possessed by the Carrier or its employees. Therefore, the contracting was allowed by the Agreement, and the employees failed to show any violation of the Agreement. The Carrier further argues that it was not required to piecemeal a small portion of the disputed project to provide work for its BMWE force; that the statement submitted by the Organization does not support its case; and the Organization's contention that the Carrier violated the December 11, 1981 HopkinsBerge Letter fails, as this Carrier was never a party to that Letter. Should the Board disagree with the Carrier and find that the Agreement was violated, it is the Carrier's position that no monetary award would be due the Claimants because no Claimant suffered any monetary loss or loss of work due to the disputed contracting.
The Carrier argues that it followed the letter of the Scope Rule, which reads in pertinent part as follows:
The record reflects that the Carrier did give proper notice and a conference was held with the General Chairman. Form 1 Award No. 31827
The record also shows that the Carrier did not possess the proper equipment or the skilled manpower to complete the disputed tunnel rehabilitation project. The position that contracting is proper in cases where the work requires specialized equipment and skills has been upheld by many Third Division Awards. See, e.g., Third Division Awards 26850, 28891, 29024, and 29558.
Once the Carrier asserted this affirmative defense, the burden was on the Organization to show that the necessary equipment was available for rental without an Operator, and to identify where it was available. The Organization did not offer any evidence to show that any BMWE represented employee is licensed to operate the necessary special equipment (e.g., the high-pressure water demolition equipment described in the Carrier's notice) or that any represented employee is qualified to use any of the equipment specified.
The statement submitted by the Organization in this case does not support its position because it only describes unsuccessful concrete work performed by BMWE represented employees three years earlier, and does not demonstrate their entitlement to work on the entire disputed project.
Third Division Awards also support the principle that a Carrier need not break up a major project into piecemeal craft work. See, e.g., Third Division Awards 26850, 28739, 28891 and 29187.
The Organization's contention that Carrier violated the December 11, 1981 Hopkins/Berge Letter falls because this Carrier was never a party to that letter. This conclusion is supported by the holding of a Special Board of Adjustment in a case involving the same parties to the instant dispute:
Based upon the facts established in the record, and In keeping with our prior decisions regarding contracting of work, this Board cannot find sufficient evidence to support the contention that the Agreement bas been violated. Therefore the claim is denied for lack of proof: Form I Award No. 31827