Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32125
Docket No. MW-31802
97-3-94-3-87
The Third Division consisted
of
the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood
of
Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Baltimore and
( Ohio Railroad 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 Bridge and Building Sub-department work
(scraping, preparing and painting storage tanks, above-ground
piping and the fence around the oil separator building) at the
Riverside Ready Track and Riverside Repair Shops in Baltimore,
Maryland beginning September 14 through October 28, 1992
[System File B-TC-8954/12 (93-221) BOR[.
(2) The Agreement was further violated when the Carrier failed to give
the General Chairman advance written notice of its intent to
contract out said work.
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, Messers. S. D. Cierkowski, C. E. Duvall, S. N. Hardy, D. A.
Kraft, D. E. Beverly, M. L. Hare and M. L. Marshall shall each be
allowed pay at their respective rates
of
pay for an equal
proportionate share
of
the eleven hundred twenty (1,120) manhours expended by the outside forces in the performance
of
the
subject work."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 32125
Page 2 Docket No. MW-31802
97-3-94-3-87
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.
Parties to said dispute were given due notice
of
hearing thereon.
Without prior notice to the Organization, during the period September 14, 1992
through October 28, 1992, the Carrier utilized a contractor to scrape, prepare and
paint the large above-ground storage tanks at Riverside Repair Shops in Baltimore.
Additionally, the contractor was used to paint the above-ground piping and bridge
systems at the Ready Track and paint the fence that surrounds the oil separator
building.
Rule 1(c) states:
"(c) Bridge, Building and structural work.
Carpentry, painting, glazing, tinning, roofing, plastering,
bricklaying, paving, masonry and concreting required in the construction
and maintenance
of
railroad structures, other than tunnels, shall be
performed by the B&B forces.
Addendum 13
of
the December 11, 1991 Letter
of
Agreement states:
"r
1. In the event the Carrier decides that in light of the criteria
specified in Paragraph (b)5. (a) of the Scope Rule of the Schedule
Agreement it is necessary to contract work of a type currently performed
by the employees coming under the Scheduled Maintenance of Way
Agreement, it shall give the General Chairman notice of intent to contract
and the reasons therefore, together with supporting data . ..."
Form 1 Award No. 32125
Page 3 Docket No. MW-31802
97-3-94-3,87
The work in dispute was clearly scope covered. There is no evidence in this
record that the Carrier gave the Organization prior notice
of
an intent to use a
contractor. We therefore find that the Carrier contracted out scope covered work and
failed to give the Organization the required prior notice. The Organization has
therefore established a violation
of
the Agreement.
With respect to the remedy, Claimants shall be made whole. The fact that
Claimants were employed at the time the contractor performed the work in this case
does not extinguish their right to relief. Claimants lost work opportunities as a result
of
the Carrier's violation
of
the Agreement However, it appears that some
of
the hours
claimed have been previously paid as a result
of
a prior settlement. There is no
evidence-e.g., a settlement agreement or exchange
of
correspondence or the like-in
this record to show that the prior settlement disposed
of
all
of
this dispute. Those
previously paid hours shall be offset against Claimants' entitlements under this Award.
AWARD
Claim sustained in accordance with the Findings.
QBDEB
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 13th day
of
August 1997.