The Third Division of the Adjustment Board, upon the whole record and all 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 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
As is familiar to all concerned, Article IV of the May 17, 1968 Agreement states in pertinent part as follows:
In this instance, the Organization protests the Carrier's assignment of outside forces to "build new walls, hang new panelling, install partitions, paint walls and install light futures and washroom fixtures at the Yard Office Buildings in Montgomery, Alabama." The Board is persuaded that, as argued by the Organization, work of this nature is "within the scope of the applicable agreement."
1. The Carrier and the Organization disagree as to whether the General Chairman received gW notification of the proposed contracting in "December 1991" (particular date in December not specified) for work which commenced December 20, 1991. However, there is no dispute that the Carrier failed to provide written notice, as required by Article IV, as quoted above. Form L Award No. 32160
2. The Carrier raises the argument of "exclusivity"; that is, the Organization did not show that employees it represents have performed the work to the exclusion of all others. This argument has been shown repeatedly and convincingly to be nondeterminative in contracti various crafts and classifications).
3. The Carrier states the Organization failed to show that it "bad available the necessary employees" to do the work. This is not the Organization's responsibility. Had written notice been given and a conference requested and held thereafter, it would have been the Carrier's initial burden to demonstrate that employees were rot available within the time required.
4. The Carrier argues that, in any event, the Organization failed to identify "any employee who was actually deprived of earnings or harmed in any way by the contractors performing the work." This contention also is without merit, by itself and particularly in view of the absence of written notice. By the contracting, the work was lost beyond recovery for Carrier forces. Monetary remedy is not a penalty measure; rather it is a reasonable recovery for the Carrier's Rule violation.
5. The Carrier suggests Claimants on vacation at the time the work was done would not be entitled to remedy. In certain circumstances, this might be valid. Here. absent written notice and conference, it is entirely speculative whether employees selected for the work would have been unavailable because of vacation.
Under the proper procedures and circumstances, the right of the Carrier to contract work has been amply preserved. Here, however, there is an absence of the required procedure and a failure to demonstrate the necessary circumstances.
This Board, after consideration of the dispute identified above, hereby orders that au 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.