NATIONAL ILkILROADADJCSTMENTBOARD
Form 1 Award No. 31867
Docket No. iMW-30810
96-3-92-3-609
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen ,hen a«ard «as rendered.
(Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE@
(CSC Transportation, Inc. (former
( Seaboard System Railroad)
STATEMENT OF CLA1,11: "Claim
of
the System Committee
of
the
Brotherhood that:
(1) The Carrier violated the Agreement when it assigned outside forces
(E&M Services
of
Dillon South Carolina) to perform Maintenance
of
Way work (reconstructing road crossings) near Mile Posts SA
46.4, SA 54.3 and SA 49.1 on the Portsmouth Subdivision of the
Florence Division on July 13, 17, and 27, 1990 [System File 90102/12(91-70) SSY1.
(2) The Carrier also violated Rule 2 when it failed to confer with the
General Chairman in good faith in order to reach an understanding
prior to contracting out the work in question.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Foreman M. C. Thomason, Assistant Foreman J. T. McGee,
Class 111 Machine Operator R Bradley and Trackmen L. A. Artis,
T. L. Boykins, Jr. and L. D. Davis shag each 'be allowed pay for an
equal proportionate share
of
one hundred fifteen (115) straight time
hours at their respective rates of pay and twenty-five (25) time and
one-half hours at their respective rates of pay for the man-hours
expended by the contractor's forces performing the subject work."'
Form 1 ..ward No. 31867
Page 2 Docket No. MW-30810
96-3-92-3-609
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and an the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employees 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 Here given due notice of hearing thereon.
The Claimants, who occupy various positions within Carrier's Track
Subdepartment, were regularly assigned to Section Force 5F14 headquartered at
Franklin, Virginia, and each observed a Monday through Friday workweek.
On March 26, 1990, the Senior Manager-Labor Relations served notice to the
General Chairman advising:
"This will serve as notice of Carrier's intent to contract for the repaving
of road crossings on the Raleigh/Rocky Mount Seniority District, Florence
Division, identified on the attached.
Contract of the foregoing is necessary due to the unavaUsbifty of skilled
forces and equipment with which the work may be done. Furthermore, as
you are weH aware, it is and has been the Carrier's position that such work
does not accrue to MofW forces and this notice is in keeping with out
commitment to you of advice when outside parties are on or near company
property.
This notice fully satisfies Carrier's obligations under applicable provisions
of Agreements. We have scheduled Tuesday, April 3, 1990, beginning at
9:00 A.M., in this office to discuss this matter further should you so
desire."
Form 1 Award No. 31867
Page 3 Docket No. INIW-30810
96-3-92-3-609
The Parties did confer on April 3, however, an agreement was not reached, and
the Carrier subsequently contracted with E&1I Backhoe Services Inc., to perform the
repaving work. When the track work was completed by Carrier forces on the
Portsmouth Subdivision, the Carrier purchased asphalt from E&M, whose employees
paved the prepared crossings and approaches leading to the track structure.
On September 7, 1990, the Organization submitted a claim asserting:
"Claim is made that the Carrier violated the effective Agreement, when on
July 13, 19 and 27, 1990, it allowed or otherwise permitted a Contractor,
E&`I Services of Dillon, S.C. to perform maintenance work of
reconstructing road crossings on the Portsmouth Subdivision of the
Florence Division.
The Claimants named herein were fully qualified, readily available and
would have performed the subject work themselves had the Carrier
only allowed them to do so. As a result of the Carrier allowing said
Contractor to perform this work, the Claimants were deprived of their
contractual rights and damaged monetarily due to the loss of work
opportunity."
In support of its claim, the Organization submitted 28 statements from Maintenance
of Way employees attesting to the fact that the work in dispute had "historically and
exclusively" accrued to them.
Further, according to the General Chairman, the Carrier had entered into an
Agreement with E&M on March 19, 1990 to perform the work in dispute one week
before advising the Organization
of
its intent to contract out the work at issue on
March 26, 1990. That constitutes "blatant bad faith bargaining," according to the
Organization.
The Carrier denied the claim maintaining that it had complied with Rule 2 of
the Agreement when it sent the March 26, 1990 Notice to the General Chairman, and
then conferred with him at the April 3 conference. The Carrier further maintained
that the asphalt paving
of
highway road crossings did not come tinder the scope of
Form 1 .award No. 31867
Page J Docket No. 11W-30810
96-3-92-3-609
maintenance of way work, nor has it exclusively been performed by the Maintenance
of Way employees. NNhile the Carrier conceded that its original contract with E&M
was signed a week before it gave notice to the General Chairman, it insisted that it
had not engaged in "bad faith bargaining." The Carrier maintained that it had
relied upon Paragraph 8 of that .Agreement which contained a "cancellation clause,"
when it originally entered into the contracting agreement. Additionally, the Carrier
noted that the work did not commence until "well after" the notice of intent and
conference.
The language contained in Rule 2 of the .agreement is clear and unambiguous
with respect to the contracting out of work. In pertinent part, Rule 2 states that in
circumstances under which the Carrier intends to contract out work it must "confer
with the General Chairman and reach an understanding setting forth the conditions
under which the work will be performed." There is no dispute that the Carrier
signed an .agreement with E&M to perform the disputed work on March 19, 1990,
seven days prior to informing the General Chairman that it intended to contract out
the work. Providing pro forma notice and consultation of a fait accompli is not
compliance with the letter or the spirit of Rule 2 or with the "good faith efforts"
promised in the "Hopkins/Berge Letter" of December 11, 1981. Based on the
undisputed facts concerning the Carrier's failure to provide timely good faith notice,
this claim must be sustained, without expressing or implying any opinion concerning
its underlying merits.
AWARD
Claim sustained in accordance with the Findings.
ORDE
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimaat(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 4th day of March 1997.