Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32365
Docket No. MW-31105
97-3-93-3-132
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned an outside
concern to perform Bridge and Building Subdepartment work
(repair/replacement
of
windows) on buildings in the Kirk Yard
beginning on July 25, 1991 and continuing (System File BG63591/TM-26-91).
(2) As a consequence
of
the violation referred to in Part (1) above, the
Gary Division Bridge and Building Carpenters shall each be
allowed compensation at their respective rates of pay for an equal
proportionate share of the total number of man-hours' expended by
the outside concern in the performance of the work described in
Part (1) above beginning on July 25, 1991 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.
Form 1 Award No. 32365
Page 2 Docket No. MW-31105
97-3-93-3-132
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 involves two Rules, each of which is unique to this property. Rule
58 states, in pertinent part:
"Time claims shall be confined to the actual pecuniary loss
resulting from the alleged violation."
Rule 6, CONTRACTING OUT WORK, states:
"(a) Memorandum of Understanding (Supplement No. 1) with the shop
crafts dated November 8, 1939:
'GENERAL
It is understood where reference is made in this
understanding to fabrication of parts of iron, tin, sheet metal
or other material or metals, that no such reference shall in
any way prohibit the Railway Company from purchasing
such parts from outside manufacturers, and that the right of
the company to have repair work performed by outside
contractors, agencies. etc., is not disturbed."
Beginning in the early 1980's, Carrier began downsizing and reorganizing a
portion of its property, facilities, and forces. As part of the reorganization program,
Carrier instituted a multi-year project of replacing all windows in the Joliet and
Gary
office buildings. Commencing in 1989, Carrier engaged and utilized an outside
contractor, Illinois Sash Erectors, Inc. to perform the window replacement. The last
three listed items in the following schedule of work constitute the gravamen of the
present dispute:
Form 1 Award No. 32365
Page 3 Docket No. MW-31105
97-3-93-3-132
Year Number of Windows Buildines
1989 75 Joliet O&O Bldg. 100
1990 129 Joliet O&O Bldg. 100-200
1990 50 Gary Office Bldg 160
1990 17 West End Yard Office-Gary
1991 40 Gary M of W Bldg.
1991 20 Gary Car-Locomotive Office
1991 59 Gary Main Office
No Scope Rule claims were filed by the Organization relative to the 1989 and 1990
Joliet phase of the window project. A Scope Rule claim was filed for the 50 windows at
Gary Office Building 160 in 990, but was progressed no further after denial on the
property by Carrier's highest designated Labor Relations officer.
On May 1, 1991, Carrier notified the Organization that it was proceeding to
contract out the third yearly segment of the window replacement program. At the
Organization's request, a meeting was held to discuss the above scheduled repairs.
Subsequently, Carrier contracted with Illinois Sash Erectors, Inc. to fabricate and
install windows in the three Gary buildings. The purchase order covered "the purchase
of and installation of Traco replacement windows" (consisting of aluminum window and
screen sashes fabricated at the subcontractor's plant) and custom fit window frames,
which were field constructed at the job site.
On September 16, 1991, the Organization submitted a claim for the man-hours
"consumed by the contractor." The claim stated, in pertinent part:
"Starting on or about July 25, 1991 the Carrier has
contracted out the replacement of windows in several
buildings in the Kirk Yard area.
Outside contractors have been brought onto the property,
and have been taken by the Carrier from building to building
to measure windows in most all of the buildings in Kirk
Yard, these same contractors then have been brought onto
the property new windows and some 7 employees of said
contractor for the purpose of installation, these contractor
Form 1 Award No. 32365
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97-3-93-3-132
employees then took out the old windows and replace them
with new windows. This type work has been done in the Kirk
Yard Camp Building, M of E Department Office Building,
Main Offce Building just to name a few buildings.
This work, however, is the work of the Maintenance of Way
Department, Bridge & Building Carpenters on the Elgin,
Joliet & Eastern Railway Company and has been there (sic)
work for years and years.
Also, this type work is listed in the controlling agreement as
work belonging to the B&B Department Carpenters. Rules
2, 5; 16, 17, 32 and 41
of
the controlling agreement in this
case has all been overlooked and or violated by the Carrier.
Therefore, the Organization is requesting that and (sic) equal
proportional share
of
man-hour spent by these outside
contractors be paid to the Gary Division Bridge & Building
Carpenters for the Agreement violations of the Carrier."
Carrier denied the claim, maintaining that the Organization's claim was untimely
presented, in view of "acquiescing" on the following:
1. No claim was filed over the 204 windows fabricated and installed in
Joliet Offce buildings by Illinois Sash in 1989 and 1990.
2. No claim was filed for the 17 windows replaced and installed in
Gary West End Yard offce in 1991.
3. No claim was filed over the seven smaller buildings that had
windows replaced during the years 1989, 1991 and 1992.
4. A claim was submitted for the 50 windows installed in the Gary
office building, but, it was not progressed after being declined by
the Carrier's highest designated officer to handle claims.
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97-3-93-3-132
Carrier went on to assert that "in view
of
the above" this claim was barred in
accordance with paragraph (c), Rule 59 "Time Limit on Claims and Grievances Rule."
This claim represents a portion
of
one
of
the latter phases
of
a multi-year project.
Even if, areuendo, the Organization's acquiescence in the earlier phase
of
this window
replacement project and abandonment
of
the earlier identical claim did not undermine
its belated claim to the 1990 work, precedent Awards
of
this Division regarding window
replacement work do defeat the claim. See Third Division Awards 31103 and 11104; See
also Third Division Awards 29224 and 29225.
AWARD
Claim denied.
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 30th day
of
December 1997.