The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
As Third Party in Interest, the Brotherhood of Maintenance of Way Employes was advised of the pendency of this dispute and chose to file a Submission with the Board.
On February 4,1997, the Organization filed a claim on behalf of Claimants M. D. Warner, R. C. Storms, and A. L. McFarlin alleging the Carrier violated Rule 1, Scope of the Agreement, and paragraph 3(c) of the Atlanta Terminal Agreement. The Organization maintains that the Carrier violated the Agreement when it used forces other than those listed in the Rules to perform work at the Consolidated Atlanta Terminal on January 4, 5, 6, 7, and 8, 1997. The Organization argues that on the above dates, the Carrier instructed and/or directed an outside contractor, the Richardson Painting Company to paint signal system equipment (air compressor tanks and air lines) used exclusively by the Signal Department at Tilford Yard. The Organization argues that the work in question has been done exclusively by the signal forces in Seniority Districts 9 and 10 in the past and that the air compressor tanks and air lines at issue were used solely for the operation of signal equipment. The Organization maintains that the Claimants were ready, willing, available, and qualified to perform the work and that the Carrier failed to give the Claimants the opportunity to do so. The Organization also argues that even though the Claimants were fully employed at the time of the claim, the Carrier did not have the right to use an outside contractor to perform the work at issue and could have used the Claimants on an overtime basis. In addition, the Organization contends that the work in question does not belong to BMWE-represented employees because the work involved signal equipment that accrues to the Signalman's Agreement. The Organization further argues that although some kinds of work are common to several classes of employees, it is the purpose of the work that determines which class of employees has preference to the work. The Organization asserts that the work involved the painting of apparatuses or appurtenances used for the signal system and, under the Scope Rule, such constitutes Signalmen's work. The Organization contends that the work in question had nothing to do with equipment installed and maintained by other employees, but involved the maintenance of signal equipment specifically covered by the Scope Rule and reserved to BRS-represented employees covered by the Agreement. In addition, the Organization argues that there is no requirement to demonstrate the exclusive performance of work when the work in question has been given to a contractor. The Organization argues that the Carrier be required to pay each Claimant 40 hours at time and one-half each Claimant's respective rate of pay, which Form 1 Award No. 35078
are the minimum amounts of time that the Organization is aware that employees from the outside contractor were observed working.
The Carrier denied the claim, arguing that the work at issue is not reserved exclusively to the Organization and, in fact, has been performed by BMWErepresented employees. The C Brotherhood of Maintenance of Way Employes and the Carrier, particularly Appendix 5, identifies the work in question and delegates responsibility for the work to the BMWE-represented employees. The Carrier also contends that the penalty claimed by the Organization is for work that involved no overtime and that the Organization offered no showing that the amount of time claimed is the amount of time worked by the contractor. The Carrier maintains that even if it is found to be in violation and a penalty is due, the penalty for work lost is the pro-rata or straight-time rate. In addition, the Carrier asserts that Claimants Warner, Storms, and McFarlin did not suffer any loss of earnings as a result of the contractor performing the work in question because they were on duty and under pay working on other projects that could not be delayed.
The BMWE's Third Party Response concurred with the position of the Organization. BMWE maintains that the Board should sustain the Organization's claim in full, which would not conflict with Agreements in effect between BMWE and the Carrier. BMWE maintains that although it has the contract right to maintain/paint tanks and air lines at other than the locations listed in Appendix 5, the Brotherhood of Railroad Signalmen has the contract right to maintain signal systems and that part of that maintenance may include air compressors and air lines that have been allowed to deteriorate so as to interfere with the Carrier's signal system, which is work specifically covered by the Organization's Scope Rule. BMWE argues that the Organization had the right to perform the painting work in question as long as it was not a part of a general painting project. BMWE contends that air line maintenance is a classic example of overlapping craft jurisdiction. BMWE also maintains that the Carrier's insistence on a Third Party Notice is nothing but an attempt to pit one union against another in an attempt to free the Carrier from the contractual obligations it has to both. BMWE further argues that the case at hand is a contracting out of work case and does not involve a dispute between crafts and that the Carrier disregarded its obligations to both crafts by contracting out the work to an outside contractor. In addition, BMWE argues that if the outside contractor did not perform the tank and air line maintenance in question, the BRS-represented employees would have at some Form 1 Award No. 35078
point. BMWE also argues that if the Carrier is allowed to maintain inadequate manpower levels and that its current employees are fully employed and cannot perform required work, the Carrier would then contract out ever increasing levels of work by simply maintaining inadequate force levels.
The Board reviewed the record in this case and finds that the Organization met its burden of proof that the Carrier violated the Agreement when it used a contractor to paint signal system equipment at the Atlanta Terminal on January 4, 5, 6, 7, and 8, 1997. The Carrier acted wrongfully when it used a contractor to paint air compressor tanks and pipelines used exclusively for the signal system.
Because the Carrier clearly violated the Agreement when it contracted out the work, the Board finds that the Claimants are entitled to relief. However, the Claimants requested time and one-half for the violation. The record reveals that the Claimants were working elsewhere at the time of this incident. As the Board has stated in many previous Awards, the Claimants cannot be allowed the punitive rate as a penalty when it is clear that they were performing work and getting paid at the time of the violation. Consequently, the Board orders that each of the Claimants shall be paid 40 hours at the straight-time rate.