On Januar- 3, 1991, without notice to the Organization's General Chairman, Carrier utilized the ser-* ices of nn outside contractor, All Erection and Crane Rental (hereinafter referred to as "the Contractor") to unload #10 switch panels of track at Harbor Yard in Ashtabula, Ohio.
The Organization submitted a claim on behalf of Messrs. Tredent and Campbell alleging that Carrier had N iolated the Scope Rule of the Agreement between the Parties "by denying a work opportunity to the named furloughed employees" by allowing the Contractor to unload two panel turnouts without giving prior notice to the General Chairman.
Carrier denied the claim maintaining that it did not possess a 50 ton crane, the "necessary equipment in question." Carrier went onto note that the work at issue had been "consistently" contracted out in the past, without "notice or protest" from the Organization.
The Organization responded further that it had "ardently objected to arty and all contracting transactions on the property of work that falls under the scope of the prevailing agreement and/or work that has ordinarily, customarily and traditionally been performed throughout the years" by employees represented by the Organization.
Various Awards of Special Board of Adjustment (SBA) No. 1016 establish the authoritative precedents which guide the decision in this matter. See SBA 1016, Awards 9, 10, 11 12 and Third Division Award 17011, cited therein. Appropriate study of the entire record persuades us that the work In dispute was "within the Scope" and did fall under the umbrella of the Scope Rule of the controlling Agreement by custom, practice Form 1 .Award No. 31871
tradition and actual performance on the effective date of the Agreement. See also Third Division A«ard '_'636.
In accordance with the holdings of decision 66-A of SBA 1016, the December 11, 1991 Letter Agreement does not enter into our deliberations. At the very least, however, Carrier was obligated to give due notice and discussion rights to the General Chairman before contracting out the v%ork in question. In that connection, there is no question that Carrier failed to give the General Chairman notice of the contracting out as required by the second and third paragraphs of the Scope Rule. The essence of those portions of the Scope Rule is in the opportunity it affords members of the Organization to "convince" Carrier to assign them the work which is being considered to be contracted out. Third Division :Hard 17636, supra. Carrier's affirmative defense of lack of necessary equipment was effectively rebutted by the Organization on the property.
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.
Furthermore, the record is clear that the Carrier has consistently contracted this type of work in the past, without notice to or protest by the Organization. Thus, clearly, under these circumstances, we deem a notice was not required. nor would it have been practical or economical to attempt to have such work done by our employees. While, as you state, the Carrier does possess a locomotive crane that could have handled the switch panels. it is not regularly used for this work and, in any event, was not available at the time of this claim." That disposition was not challenged and became precedent on this property. Carrier's need for the 50-ton crane was that it wanted to install the switch panel in one mo%e and not have to sectionalize it.