By letter dated August 31, 1993, the Carrier took the position that several of the individual claims were untimely; asserted that the work has not been exclusively performed by Maintenance of Way employees; and the Carrier lived up to its commitment to return furloughed employees to work.
First, brush cutting is scope covered work. Rule 66(b) covers "mowing and cleaning right-of-way." Statements from employees show that for years Maintenance of Way employees have performed this kind of work. See also, Third Division Award 16436 between the parties (involving the contracting out of brush cutting). Indeed, in its July 28, 1992 notice. the Carrier recognized that this was ". . . work normally . . . performed by either signal or maintenance of way employees."
The record shows that there were employees in furloughed status during the time of contracting. A violation of Rule 83(b) has been shown. Form 1 Award No. 32701
Third, the Carrier's argument that the employees did not perform the work on an exclusive basis is not persuasive. While exclusivity of performance of work is a necessary element for an assignment dispute between crafts or groups of employees under a general Scope Rule, in contracting out disputes the Organization need not demonstrate that employees have performed the work on an exclusive basis. See e.g., Third Division Award 32699 between the parties citing Third Division Award 31777 - also between the parties. ("The Carrier's reference to the Organization's need to prove its `exclusive' right to the work has been repeatedly found inappropriate in reference to contracting claims.") Indeed, under this Agreement, if exclusivity had to be shown, once the Carrier legitimately contracted work under Rule 83 because of lack of available employees, the Organization could never again claim protection under that Rule because a contractor once legitimately performed the work and the employees could not thereafter claim performance of the work on an "exclusive" basis. The result of such an interpretation would write Rule 83 out of the Agreement.
Fourth, nor are we persuaded that the conditions caused by the brush growth constituted an "emergency" allowing the Carrier to bypass any requirement that it use its employees. Ordinary track maintenance could have prevented the situation. See Third Division Award 32435. ("Nor are we persuaded that the gradual unchecked growth of vegetation in the absence of routine cutting and pruning rises to the level of unanticipated unavoidable urgency normally associated with an 'emergency.'") Moreover, the record reveals that there were employees in furloughed status who were available for such routine work. There is no evidence that the Carrier was placed in a situation that it could not contact or use those employees to relieve the conditions caused by brush growth. Further, the record shows that this project was widespread in scope and time. The immediacy of action called for in an emergency has not been demonstrated in this case. The Carrier's argument that the Organization never disputed the emergency conditions on the property is also not persuasive. From the outset. after receiving notice the Organization protested the use of a contractor to perform this work. The scope of that protest encompassed an objection to any defense the Carrier may have had (including "emergency") for using outside forces.
Fifth, the Carrier asserts there was a resolution between the parties concerning the recall of furloughed employees and that it complied with that resolution and should not now be found have improperly contracted work. According to the Carrier. the resolution was "to call back and establish forces to cut brush with a number of employees comparable to the contract gangs." The Organization took "violent Form 1 Award No. 32701
exception" to the resolution as described by the Carrier, but acknowledged that there was a ". . . commitment from the Carrier to put on an equal number of employees that the contractor had working." The difference in perception concerning the resolution was that the Organization described "the intent of this was that the employees would be put on each of the seniority districts where contractor's forces were working" and the recalled employees were put on B&O territory, but not on C&O territory where the contractor's forces were working.
In Third Division Award 27664, the parties therein disagreed on whether the carrier could use a contractor, but the Local Chairman and the carrier reached an accord that the contractor could work if a covered employee worked along with the contractor. The Board denied a claim that the use of the contractor was improper, finding that the parties had reached a resolution and the organization would be held to the terms of that resolution - in essence, estopped from claiming a violation of the contracting provisions. The Carrier relies upon Award 27664. The fundamental difference between that Award and the facts in this case is that in Award 27664 there was no dispute concerning the nature of the resolution - the parties agreed that a contractor could be used if an employee worked along with the contractor. Here, there is a dispute concerning the resolution reached. The Carrier asserts that the Organization agreed "to call back and establish forces to cut brush with a number of employees comparable to the contract gangs." The Organization asserts that the recall agreement was to cover the same territory where the contractors were working, which did not take place. .-sward 27664 is therefore not dispositive.
The asserted resolution between the parties is a defense raised by the Carrier against the Organization's claims. Because the resolution is an affirmative defense by the Carrier, the burden is therefore on the Carrier to establish the nature of the resolution and to show that there was a meeting of the minds as to the scope of that resolution. That has not been done. The record establishes that the parties were simply on different wavelengths - two ships passing in the night, so to speak - concerning the nature of the recall resolution. The Carrier felt that its obligations were met under the resolution by recalling employees for brush cutting work. The Organization felt that the Carrier agreed that the recall would be on the same territory where the contractor's forces were working - which did not occur. While the fact that furloughed employees were recalled has an impact on the scope of the remedy in this case (see discussion below), the recall of certain employees to perform brush cutting work on B&O territory rather than on C&O territory where the contractor was working is not a complete Form I Award No. 32701
defense to the claim. The Carrier simply has not shown that there was a meeting of the minds on the scope of the resolution between the parties.
Sixth, the function of a remedy is to make whole those employees who have suffered losses as a result of a contract violation. The use of outside forces in violation of the Agreement deprived covered employees of work opportunities. Those adversely affected employees should therefore be made whole commensurate with the number of hours improperly worked by outside forces.
But the record reveals that as a result of the Carrier's interpretation of the resolution reached between it and the Organization some employees were recalled from furlough to perform brush cutting work on B&O territory. Although that interpretation has not been shown to be what the Organization understood the resolution to be (i.e., to perform work on C&O territory where the contractor's forces were working), nevertheless, as a result of the Carrier's actions consistent with its interpretation concerning the nature of the resolution, furloughed employees were recalled and given work opportunities. The record does not reveal that those furloughed employees (as opposed to non-furloughed employees) would have been given those work opportunities were it not for the Carrier's interpretation of the resolution reached between it and the Organization. Those furloughed employees therefore benefited from the Carrier's actions. Therefore, those hours worked by recalled furloughed employees on B&O territory performing brush cutting during the time covered by the claims must be offset against the total number of hours worked by the contractor's forces on C&O territory. The affected employees shall be compensated accordingly.
Seventh, the Carrier asserts that a number of the individually filed claims were untimely. We view these consolidated claims as a single continuing dispute affecting a number of Claimants. However. under Rule 21(g), the Organization has the obligation to rile claims within "sixty (60) days of the date of occurrence." In claims which are continuing in nature but which are initiated outside of a specified filing period, a customary remedy is to toll the Carrier's liability for any demonstrated violations which are not covered by a timely filed claim. That type of limitation on the remedy is appropriate in this case. Taking the claims in toto, the Carrier shall not be responsible for any violation which occurred 60 days prior to the filing of the frst claim. The parties are directed to determine the extent of that offset. if any. Form 1 Award No. 32701
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.