Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32220
Docket No. MW-31292
97-3-93-3-358
The Third Division consisted of the regular members and in addition Referee W.
Gary Vause when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (AMTRAK)
STATEMENT OF CLAIM:
"Claim of the System Committee
of
the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned or otherwise
allowed outside forces (Jim Brittles) to install architectural metal
grilles within the 30th Street Station at Philadelphia, Pennsylvania
on March 23 through 27, 1992 and on a continuing daily basis
thereafter (System File NEC-BMWE-SD-3148 AMT).
(2) The Agreement was further violated when the Carrier failed to give
the General Chairman advance written notice
of
its plans to
contract out said work.
(3) As a consequence of the aforesaid violations, B&B Mechanic E.
Hollins shall be allowed eight (8) hours' pay at his applicable
straight time rate for each workday beginning on March 23, 1992
and continuing until the violation ceases."
FINDINGS:
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.
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97-3-93-3-358
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
At the time of the-events which led to this claim, Claimant was employed as B&B
Tinsmith, headquartered at 32nd Street, Philadelphia, Pennsylvania. The Organization
filed a time claim dated April 7, 1992 on behalf of the Claimant for work performed by
outside forces on March 23 through 27, 1992 and continuing.
The Organization asserted that the Carrier violated the Scope Rule because it
failed to give the General Chairman any advance written notice of its plan to contract
out the work.
The Carrier defended on the grounds that the work in question was included
within an April 12, 1988 Notice of Intent to rehabilitate the 30th Street Station, and was
precluded by a subsequent agreement reached November 29, 1989. In a letter dated
June 5, 1992 the Acting Division Engineer advised the Local Chairman that the claim
was denied, and stated:
"The Carrier contends this work is within the scope of the Station
Rehabilitation Project, and therefore did not require additional labor
clearance. In a letter dated November 29, 1989 from Mr. L. Hriczak, and
signed by General Chairman Dodd, Amtrak guaranteed 1206 man days of
B&B work in the project or payment for such number of days at the pro
rata rate. This agreement precludes claims for work associated with the
project."
In a letter dated October 1, 1992 the General Chairman rejected the Carrier's
assertions that the work was part of the 30th Street Station Rehabilitation Project and
stated:
"The Carrier has proffered the myth that the work performed by
Jim Brittles was performed as it fell under the original labor clearance for
the Thirtieth Street Station Rehabilitation Project. When proffered by the
Carrier, the Thirtieth Street Station Rehabilitation Project articulated
precise terms. The work performed by the contractor was not then nor is
Form 1 Award No. 32220
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97-3-93-3-358
it today part of that rehabilitation project. The work performed by the
contractor is work that clearly comes under the terms of the prevailing
Agreement and is work routinely performed by B&B employees."
The parties raised a number of issues before the Board, but the threshold issue
for determination is whether the claim is precluded from jurisdiction of the Third
Division of the Board. Analysis of this issue must begin with the agreements of the
parties. As stated in Third Division Award 17988 (Devine):
"... We agree with prior awards of the Board to the effect that procedures
established and accepted by the parties themselves for resolving disputes
should be respected."
Based upon careful review of the record, the Board finds that it does not have
jurisdiction of disputes between the parties which allege an improper contracting of
work within the scope of the Agreement. This result is required under paragraph
A(1)(d) of the Scope Rule which states:
"Any question with regard to contracting out work in accordance with the
scope of this Agreement may be referred by either party to a Special
Board of Adjustment created specifically and solely to hear and render
decisions upon such questions. The Special Board of Adjustment shall
operate in accordance with the Agreement appended hereto as Attachment
,A,: ,
Paragraph B of Attachment "A" of the Scope Rule states:
"The Board shall have jurisdiction only of disputes or controversy arising
out of the interpretation, application or enforcement of the Scope Rule
provision of the Schedule Agreement, as revised September 2, 1986,
between the parties hereto."
Accordingly, the Special Board of Adjustment has jurisdiction over disputes or
controversies arising out of the interpretation, application or enforcement of the Scope
Rule. As the Organizations's Statement of Claim alleges a violation
of
the Scope Rule,
involving work performed by outside forces, this dispute should have been referred to
the Special Board
of
Adjustment.
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97-3-93-3-358
Notwithstanding the clear mandate
of
the Scope Rule, the Organization argues
that its position is supported by Third Division Award 31996, in which a similar claim
was sustained by the Board. The Carrier's argument that the Board was precluded
from jurisdiction was discussed and rejected in one terse sentence:
"Finally, Carrier's argument that primary jurisdiction in Special Board
of Adjustment No. 1005 deprives this Board
of
concurrent jurisdiction and
authority to hear and decide this dispute is not persuasively established in
this record."
The Board's decision in Award 31996 may be explained by the Carrier's failure
to produce evidence sufficient to convince the Board
of
its jurisdictional argument, or
there may be another explanation for the decision. See the Carrier Members' Dissent
to Third Division Award 31996. In any event, the Carrier adduced sufficient evidence
to sustain its jurisdictional argument in the instant case.
The Third Division fully considered this identical issue in Third Division Award
31481 and drew the following conclusions:
"Clearly, the Scope Rule contains the contracting out language,
including the mandatory advance notice clause. By the inclusion
of
the
contracting out language in the Scope Rule and by agreeing that all
questions regarding the interpretation, application, or enforcement
of
the
Scope Rule would be resolved by the Special Board
of
Adjustment, the
Organization locked itself into a position that if a contracting out-Scope
Rule grievance is filed, its final resolution lies solely with the Special Board
of Adjustment.
,r r~
We must dismiss this claim."
This same result is required in the instant case, and the claim therefore is
dismissed.
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AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 17th day of September 1997.