Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32863
Docket No. MW-31806
98-3-94-3-88
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company (former Chicago, Milwaukee,
( St. Paul and Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1). The Agreement was violated when the Carrier assigned outside
forces (L. H. Hinnen & Sons) to perform Maintenance of Way
Roadway Equipment and Machine Subdepartment work (demolish
a storage shed and hauling debris away) at Chillicothe beginning
October 19 through 29, 1992 (System File C-44-92-C080-11/8-00116
CMP).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with advance written notice of its
intention to contract out said work as required by the Scope Rule.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Mr. D. J. Beranek shall be allowed seventy-two (72) hours'
pay at his respective straight time rate and eighteen (18) hours' pay
at his time and one-half rate."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 32863
Page 2 Docket No. MW-31806
98-3-94-3-88
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.
Parties to said dispute were given due notice
of
hearing thereon.
Without prior written notice to the Organization, during certain dates in 1992,
the Carrier utilized a contractor to demolish a storage shed.
The Scope Rule states, in part:
"NOTE: In the event Carrier plans to contract out work within the scope
of
this agreement, the Carrier shall notify the General Chairman in
writing as far in advance
of
the date
of
the contracting transaction as is
practicable and in any event not less than 15 days prior thereto."
Because no notice was given, the Organization has demonstrated a violation
of
that portion
of
the Rule.
The Organization is not required to demonstrate that the employees performed
the work on an exclusive basis. See Third Division Award 32861 between the parties:
"Contrary to the Carrier's argument, in order to be entitled to notice as
required by the rule the Organization does not have to demonstrate that
the covered employees performed the work on an exclusive basis. See
Award 31388 (`. . . [Tjhe Board has repeatedly held that demonstration
of
"exclusivity" is not required by the Organization in its claim for specific
work.'). See also, Award 31386 (`A myriad
of
Awards have concluded
that, while exclusivity may be an appropriate test as to division
of
work
among various crafts and classes
of
the Carrier's employees, it is not an
appropriate requirement under the Agreement provision concerning
contracting
of
work')."
Form 1 Award No. 32863
Page 3 Docket No. MW-31806
98-3-94-3-88
Aside from the evidence offered by the Organization, the record demonstrates
that the Carrier conceded on the property that the employees have performed this type
of work in the past. In the Carrier's May 14, 1993 letter at page five, the Carrier states
". .. Carrier agrees, the Organization's members may have performed similar work in
the past . . . ." Those demonstrations are sufficient for us to conclude that the work falls
"within the scope of this agreement" requiring the Carrier to give the Organization
advance written notice as stated in the Rule.
We do not view the work involved in this case (demolition of a shed) to be work
on abandoned property so as to remove that work from coverage of the Scope Rule so
as to change the result.
The failure by the Carrier to give advance notice as required by the Rule resulted
in a loss of work opportunities. That loss shall be made whole requiring relief even
though Claimant may have been working at the time the contractor was used. Award
32861. See also, Third Division Award 31386:
".
. . Here, the work was lost to Carrier employees, and a claim for pay is
not inappropriate. This is particularly relevant here in view of the
Carrier's admitted failure to advise the General Chairman in advance. If
such had been done, it is certainly conceivable that either a solution to use
Carrier employees may have been devised or the Organization may have
been convinced of the necessity of contracting the work."
This claim will be sustained. The matter is remanded to the parties to determine
the number of hours worked by the contractor. Claimant shall be compensated
accordingly.
AWARD
Claim sustained in accordance with the Findings.
Form I Award No. 32863
Page 4 Docket No. MW-31806
98-3-94-3-88
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of October 1998.