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 :pct, as approved June 21, 1934.
The Organization in its Submission seeks to have the claim sustained on procedural grounds, on the basis that the General Chairman's initial appeal to the appropriate Carrier officer was not answered by that officer. The Organization's position is without contractual basis. The Carrier had advised the Organization as to the proper persons to whom claims should be initially directed. As the Organization states, it is that person who "usually and customarily" responds to the claim. In this instance, another Carrier representative responded in 30 days.
In the on-property correspondence, the General Chairman took no exception that the timely reply came from a different Carrier representative. Further, the Statement of Claim as presented to this Board includes no reference to this alleged violation. Most Form l Award No. 32560
significantly, Rule 40, Section 1(a) requires simply a reply from "the Carrier" within 60 days. Many previous Awards have reached a similar determination.
The Organization also objects to the Board's consideration of a letter, with attachments, included in the Carrier's Submission. The letter is addressed to the General Chairman and is dated January 7, 1994, prior to the Organization's referral of the dispute to the Board on January 21, 1994. As stated in Third Division Award 32558, addressing a similar circumstance:
According to the Organization, one of the Claimants was directed on November 20, 1991 to prepare and deliver to a contractor parts for the rebuilding of two Ballast Regulators. This occurrence gave rise to the initiation of the claim. The Claimants have their headquarters at the System Roadway Repair shops, Rice Yard, Waycross, Georgia. The record shows no indication of any prior notice to the Organization at Waycross or elsewhere.
The :larch 16. 1992 response from the :Manager-Work Equipment reads as follows:
In an October 8, 1993 on-property response, the Director Employee Relations stated: Form l .-sward No. 32560
The Board finds the Carrier in violation of Rule 2 which requires, even in a variety of special circumstances, the Chief Engineering Officer and the General Chairman to "confer and reach an understanding setting forth the conditions under which the work will be performed." The Carrier's initial claim response, quoted above, is precisely the type of information which could have been the subject of a conference prior to contracting. Such information might have been persuasive to the Organization, but it obviously comes well after any opportunity to propose alternate means of accomplishing the repairs with Carrier forces.
The Carrier defends its failure to follow this mandatory -)rocedure on various grounds: (1) this repair work has on frequent occasion been give to contractors in the past; (2) the work is done at locations other than Waycross .ad by employees of a different craft; and (3) the Ballast Regulators were not for use . t Waycross.
None of these defenses is convincing to the Board. This is not a dispute as to the appropriate craft or location to which the work should be assigned. Thus. exclusivity is not an issue. The record fails to show that opportunity for conference was provided at anv location or to anv General Chairman.
Beyond this. as noted above, the Carrier virtually concedes in its claim responses that the work arguably could have been performed by the Claimants. As a result. it cannot be concluded that the Carrier was unmindful of its need to comply with Rule 2.
The question frequently arises as to remedy where the Claimants were fully employed at the time of the violation. There are recognized instances where pay would be, as argued by the Carrier, a "penalty" for the Carrier and a "windfall" for the Claimants. The Board does not find this applicable here. The work involved was irrecoverably lost to Carrier forces. Since no opportunity for conference was provided at any location, the claim by Waycross employees is appropriate. Further. it is not without precedent for the Organization to request pay for hours worked by the contractor's employees to be divided among a group of eligible employees (even if far Form 1 Award No. 32560
fewer employees would have been involved in the work). That is the Organization's prerogative and is without additional expense to the Carrier. In reaching this conclusion, the Board relies on two Awards, among many others, involving the same parties and the same issue.
Third Division Award 22917, issued in 1980, emphasized that a meeting to "confer and reach an understanding" was "a condition precedent to contracting out Maintenance of Way work." This Award described Rule 2 as "clear, simple and unambiguous language and directly applicable to the facts herein." While not directing pay (because one of the Claimants was already compensated at a higher rate of pay) the Award stated its intent to "direct Carrier to observe the procedural requirement of this Rule."
Here, the situation ma_v not warrant the "blatant" characterization. but the .ward otherwise expresses the obvious significance of Rule 2, as forewarned in Award 22917.
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.