(National Railroad Passenger Corporation (AMTRAK)

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Maryland Office Relocation, Inc.) to move the Carrier's office furniture from its General Office to the REA Building in Washington, D.C. on January 26, 27 and 28, 1990 (System File NEC-BMWE-SD-2695 AMT).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with advance written notice of its intention to contract out said work as required by the Scope Rule.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, B&B employes J. A. Lewis, B. Shaffer, L. Pretty, R. Ellsworth, R. Montour, M. Kramer, E. McMahan, P. Colliere, D. McCadden and P. McDonough shall each be allowed twenty (20) hours' pay at their respective time and one-half rates."

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, 193.1.

This Division of the adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

This dispute centers on C'arrier's decision to contract out the moving of furniture in connection with the relocation of its General Offices in Washington, D. C. It is not disputed that on Januan 26, 27 and 28, 1990, Carrier utilized Maryland Office Relocation. Inc. (MOR) to relocate the General Office to the REA building. MOR utilized 15 men to perform this work for four hours on January 26, eight hours on January 27, and eight hours on January 28, 1990. The 15 men had a total of 20 hours apiece for the three days.

On March 20, 1990 the Organization submitted a claim alleging that Carrier had violated the Agreement, particularly the Scope and Work Classification Rule, when it "elected to contract with a private company to move the Carrier's office furniture and did not offer the work assignment fast to the Claimants." The Organization went on to submit that: "The Claimants have performed this work in the past, in fact, many of the Claimants are the individuals who relocated the General Office to the building it was in before this relocation described above." Finally, the Organization noted that Carrier had failed to notify the Organization of its intent to contract out the work claimed, maintaining that: "This action in itself requires payment of the claim as presented."

Carrier denied the claim asserting:

"You have failed to produce any evidence to support your contention that the B&B department employees have performed the work of moving office furniture for the company on a system wide basis or that the work is reserved exclusively for these employees by agreement or practice as is required in a claim of this nature.

On August 27, 1991, the Organization sent Carrier the following:

"The Organization filed a claim and subsequent appeals citing violation of the Scope and several work related rules of the respective agreement. Organization also cited past practice was violated in the case at hand. The Scope of the agreement was clearly violated when the Carrier failed to give the required notice to the Union of its intent to contract the disputed work. For this reason alone the claim should be sustained.

Without retreating from above, the Organization has just recently been forwarded additional information regarding the instant case. The information is statements from the B&B employees at Washington. There are seven statements and they are attached for your information. The statements clearly sustain the Organization's position.

On that same date, Carrier responded to the Organization "objecting to the inclusion of these handwritten statements at this late date. We will respond in more detail in the near future. However, we do not believe that it is necessary to extend your .august 28, 1991 time limit for progression of this dispute in order to allow us an opportunity to respond." Carrier went on to state: "Numerous decisions of the NRAB have held that neither party is entitled to gain procedural advantage through the manipulation of the record and that the carrier is entitled to respond to information submitted to it immediately prior to the submission of the dispute to the Board." Finally, Carrier stated that this Board lacks proper jurisdiction to hear this dispute.

As the moving party, with the burden of proof with respect to Scope Rule coverage of the disputed work, the Organization appropriately submitted in handling on the property, seven written statements bearing on the work at issue. Carrier's assertion that the statements were "too late" to be considered is contrary to a host of Awards holding that any evidence submitted on the property prior to the date of the Notice of Intent to file a Submission may be considered by the Board. See Third Division Awards 20773 and 22762 for example. We see no no reason to disbelieve the Organization's representation that it provided the evidence to Carrier as soon as possible on the property prior to filing its Notice of Intent and no showing of prejudice to Carrier. Nor did Carrier submit any probative evidence with respect to its assertions of "sharpshooting" or manipulation of the record. FlnaVy, Carrier's argument that primary jurisdiction in Special Board of Adjustment No. 1005 deprives this Board of concurrent jurisdiction and authority to bear and decide this dispute is not persuasivly established on this record.

On the merits of the dispute, the Organization made out a prima facie case of violation of the notification and conferencing requirement. With respect to remedial damages for the proven violation, it is undisputed that Claimant Lewis was on military leave at the time of this dispute and his claim is dismissed. The Organization submitted that the remaining Claimants, Messrs. Shaffer, Pretty, Ellsworth, Montour, Kramer, McMahan, Colliere, McCadden and McDonough are entitled to be compensated at the overtime rate of pay for the lack of overtime opportunity. Despite the logic of this argument, it has long been held on this property that, even in such situations, damages are paid at the straight time rate. Therefore, Carrier is directed to compensate the Claimants. other than Mr. Lewis, for 20 hours each at their respective straight time rates of pay.

WARD