"(1) The AgreementwasviolatedwhentheCarrierassignedoutsideforces (S.P. Telecom) to perform Maintenance of Way work (driving pilings and building retaining walls) at Byers Canyon, Gore Canyon, Fraser Canyon and Little Boulder Canyon, Colorado between Mile Post 35 and Mile Post 115 beginning November 8 through December 15, 1993 and continuing (System File D-93-117BMW 94-192).
(2) The Agreement was further violated when the Carrier failed to give the General Chairman fifteen (15) days' advance written notice of its intent to contract out the work in Part (1) above as required by Article IV of the May 17, 1968 National Agreement.
(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, furloughed Claimants G. E. Vasquez, G. G. Arias, F. Moreno, J. Aguirre, E. G. Tomes, S. C. Diaz, L. T. Bartlett and D. E. Lamarine shall each be allowed eight (8) hours' pay per day at their respective straight time rates of pay for the hours worked by the contractor's forces which were outside the regular assigned hours, commencing November 8, 1993 and continuing through December 15, 1993:'
offer of settlement to dispose informally of the claims, we might not feel the same for it could be argued that such action did not compromise its position on the merits. However, it went beyond any such informal efforts at settlement and instead assigned B&B forces to the work in question. Thus, we conclude that the work in question, by virtue of the Carrier's own actions on and after November 12, 1993, did indeed belong to the Organization as it claims and therefore when the Carrier assigned the work to S.P. Telecom, and did so without notice to the Organization, the Carrier violated the agreement.
However; we disagree with the Organization with respect to the extent of the remedy. As noted above, the record clearly establishes that on November 12, 1993 the Carrier assigned B&B forces to the work. Therefore, the Organization's claim to the work was acknowledged and satisfied from that point forward and any remedy must be limited to the period when only those employees of S.P. Telecom performed the work, i.e. between November 8 and 12, 1993.
With respect to Claimants Bartlett and Lamarine however, no such action was taken by the Carrier. However, it argued that these claims must be denied because the specialized equipment necessary to perform the work was not available to the Carrier so that these Claimants could be assigned to perform the work. Upon review of the record it is clear that the Organization contends in reply only that B&B forces have used the type of equipment in the past. However, it did not rebut the evidence that whether or not that was true, the equipment in question was not available to the Carrier, but rather available only by way of S.P. Telecom. Therefore, the assignment need not have been made to Claimants which also disposes of the argument that the Carrier violated the agreement by not giving notice to the Organization of its arrangement with S.P. Telecom.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 33341. DOCKET MW-32251
(Referee Perkovich)
The Majority was correct when it found that the Carrier had violated the Scope of the Agreement and therefore a concurrence is appropriate. However, the Majority erred in its reasoning concerning the violation and the failure t L. T. Bartlett and D. E. Lamarine.
The record is crystal clear that the Carrier had an obligation to notify the Organization prior to contracting out the work and, if requested, meet with the Organization concerning the contracting in accordance with Appendix ^D" of the Agreement. If the purpose of the contracting was linked to special equipment, the Carrier was also obligated to advise the organization of that fact and then be prepared at the conference to establish that it did not own the equipment needed, nor could the equipment be rented or leased without an operator. If that was not the case and it was established that a piece of equipment could an operator, then a member of this organization would be assigned to operate the rented or leased equipment, i.e., Claimants Bartlett and Lamarine. Therein lies the fallacy in the Majority's decision. It made a "leap of faith" to conclude that special equipment was necessary in this instance. The problem here is that the carrier failed to issue a notice of its intention to contract out any work. Obviously, absent noLice and. conference under Appendix "D", neither the Organization, much less the majority, would know whether the exceptions had been met by the Carrier. The Carrier°s errors were compounded when consideration is given to the unrefuted fact that Maintenance of Way employee had operated this same, equipment, owned by S. P. Telecom, just, prior to the Carrier furloughing the Claimants. Hence, the Carrier was able "leap of faith" that special equipment was necessary. To that end, I therefore dissent.