Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32019
Docket No. MW-31492
97-3-93-3-473
The Third Division consisted of the regular members and in addition Referee
Gerald E. WaWm when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Springfield Terminal Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces to perform Maintenance of Way work of dismantling, sorting,
stockpiling and salvaging track components at Lewiston Yard in
Lewiston, Maine on various dates beginning May 4 through July 3,
1992, without providing advance written notice to the General
Chairman (Carrier's Files MW-92-7, MW-92..8, MW-92-9, MW-9210 and MW-91-11 MEC).
(2) As a consequence of the violation referred to in Part (1) above,
Track Foreman S. Keniston and Machine Operator F. Gallant shall
each be paid at their respective rata
of
pay from May 4 through
June 3, 1992 and Track Foreman A. R. Jarvi and Machine
Operators L. Brown and W. Jordan shall each be paid at their
respective rates
of
pay from June 4 through July 3,1992."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and ail the
evidence, finds that:
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 11, 1934.
Form 1 Award No. 32019
Page 2 Docket No. Nf-MW-31492
97-3-93-3-473
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
It is undisputed that Carrier hired a scrap dealer to retire its Lewiston Yard.
Carrier did not provide the Organization advance written notice
of
its plans to use the
outside forces to remove substantial quantities
of
the yard materials even though some
of
the material retired was retained by the Carrier. According to the record, the
Organization agreed it was proper for the contractor do handle its owned material. But
the Organization disputed the contractor's handling and stockpiling of the material
retained by the Carrier. The Organization cited Third Division Award 26673 in support
of
its position.
Carrier did not raise any "piecemealing" of work defense on the property.
Although it did so in its Submission, the Board will not consider evidence and argument
that was not part of the claim handling on the property. Carrier also properly asserted,
without challenge by the Organization, that each of the Claimants was fully employed
and compensated on the claim dates.
Under the unique circumstances
of
this record, we find that Carrier did violate
the requirements
of
Article
IV of
the May 17, 1968 National Agreement concerning the
contracting of work.
As to the remedy, however, it has been a well established principle of this Board
to deny compensation for Article IV violations when no loss of earnings is demonstrated.
This principle was clearly stated in Third Division Award 26673 cited by the
Organization. Since there was no loss of earnings proven by this record, we must deny
Part (2)
of
the claim.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 32019
Page 3 Docket No. MW-MW-31492
97-3-93-3-473
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimaot(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 6th day
of
May 1997.
LABOR MEMBER'S DISSENT
TO
AWARD 32019. DOCKET MW-31492
(Referee Wallin)
The Majority correctly found that the Agreement was violated
when the Carrier assigned employes who hold no seniority under the
Agreement to perform work without notifying the General chairman
before it did so. However, the Majority's finding that no monetary
remedy is warranted for such a violation is both poorly reasoned
and clearly ignores the caveat found within the very award it cites
in support of its position to deny said remedy.
The Majority's first error was its finding that there is a
"well established principle of this Board to deny compensation for
Article IV violations when no loss of earnings is demonstrated".
That finding is plainly and simply wrong. What is perplexing is
how the Majority arrived at this plainly wrong conclusion. There
is no precedent cited in the award. However, a review of the
record establishes that the following list of awards was cited to
the neutral member by the Organization as precedent concerning this
type of work, Third Division Awards 24280, 28611 and Award 21 of
Public Law Board 4370. Typical thereof is Award 24280, which held:
"The claim has merit to some degree, however, in
that the dismantling and removing performed by the
purchaser included work on behalf of the Carrier which
appears to the Board to be considerably more than
incidental to the removal of the purchaser's property.
The Organization in its claim states that the
purchaser was 'taking selected rails and ties and piling
Labor Member's Dissent
Award 32019
Page Two
"them for the Milwaukee Road . ... This material is and
continues to be Milwaukee Road property.' Such contention was not denied by the Carrier. In its corr
found it necessary to handle Milwaukee Road property to
avoid damage ... while he is attempting to remove his own
personal property'.
Given this state of the facts, the Board finds that
the carrier caused outside forces to perform work
customarily and normally performed by Maintenance of Way
employes to the extent of dismantling and storing
materials for continuing use of the Carrier.
a * +
Further, the Board does not agree -- again in these
particular circumstances -- that there should be no
compensation to the Claimants since they were not
available to perform the work because they were 'fully
employed in the dates of claim' as stated by the Carrier.
If the carrier had determined that the portion of the
work on its own behalf was to be performed by Maintenance
of Way employes, they would have been made available for
this purpose. Award Nos. 13832, 15497 and 21678 (and
others cited therein) hold in similar fashion.
In so holding, the Board is aware of Article IV
cases, such as Award No. 21646, which hold that no
compensation is due to claimant employes who are fully
employed and can demonstrate no loss of earnings.
However, in Award No. 21646 and others following the same
reasoning, the primary issue appeared to be the failure
of the Carrier to give appropriate notice under Article
IV -- even though, given such notice, the subcontracting
would have been appropriate, owing to the nature of the
work involved. The dispute before the Board here may be
readily distinguished from such cases. Dismantling of
track and ties and stockpiling of a portion of them
involves no unusual characteristics." (Underscoring in
original)
Had the Majority taken the time to review the authority found
within the above-cited award, as well as the other awards cited in
Labor Member's Dissent
Award 32019
Page Three
connection therewith, and applied said authority to the circumstances in the instant case, it wo
render the finding that it did.
Second, the Majority cited Award 26673 as part of the
authority to deny the monetary portion of the claim. It is true in
that case that the Board did not award a monetary remedy but it did
go on to state:
'With respect to the remedy, both Claimants were
fully employed on the date of the claimed work. While
the Carrier's violation in this case is clear, it has
been a well established principle of this Board to deny
compensation for Article IV violations when no loss of
earnings is demonstrated (see for example Third Division
Award 23560). We will follow that doctrine in this
dispute with the caveat that repeated violations could
well result in a different holding."
Inasmuch as that award was adopted on November 23, 1987, more
than five (5) years before this dispute arose, the caveat would
have been satisfied and the damages portion of the claim in this
case should have been enforced. Under such circumstances, a
monetary award is not the equivalent of punitive damages. Instead,
it is compensating the claimants for work they otherwise would have
performed and wages they would have earned. That is precisely the
theory upon which the vast majority of awards have relied to
sustain monetary claims for fully employed claimants.
Labor Member's Dissent
Award 32019
Page Four
After all, if it were an established principle to deny a monetary
award based on the claimants fully employed status, what sense
would it make to there being such a dispute to the National
Railroad Adjustment Board. All the Carrier would have to do is
contract out the employes work with impunity while the forces were
fully employed, ignore the notification provisions and receive a
mere slap on the wrist from the Board for doing so. If that were
the case, the Carrier would begin to cut back its forces even
further than it has, and hire contractors to do all seasonal work
while the skeleton work force preformed the basic maintenance.
After that.the death of the Agreement would not be far off. Such
a scenario is clearly not what the framers of the Railway Labor Act
intended when it wrote Section 3 of the Act.
Therefore, I dissent.
R~espect~ully submitted,
R0o
C. Robinson
Labor Member