The Third Division consisted of the regular members and in addition Referee Edwin H. Benn 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 Railroad Signalmen was advised of the pendency of this dispute and chose to file a Submission with the Board.
The general principles governing resolution of the brush cutting disputes currently under consideration by the Board are set forth in detail in Third Division Award 35529. In sum, (1) the Organization filing the claim has the burden to demonstrate a violation of the Agreement; (2) brush cutting in general along the Carrier's right-of-way is BMWE scope covered work; (3) the cutting of brush that interferes with signal or communications lines and related equipment is BRS scope covered work; (4) the cutting of brush under the pole line that does not interfere with signal or communications lines and related equipment falls under BNIWE Scope Rules; (5) where outside forces are used, the relevant contract provisions governing the use of such forces will be applied and assertions of the need to show exclusive performance of the work will not defeat an Organization's claim; (6) with respect to asserted emergencies, the Carrier has the burden to demonstrate the existence of an emergency, which requires it to show the existence of an unforeseen combination of circumstances that calls for immediate action, but where ordinary track maintenance could have prevented the situation, no emergency exists; (7) where Agreement violations have been demonstrated, adversely affected employees will be made whole at the appropriate contract rate on the basis of lost work opportunities and irrespective of whether the employees were working on the dates of the demonstrated violations; and (8) where violations have been demonstrated, the disputes will be remanded to the parties for determination of the number of hours attributable to the improperly assigned work Form 1 Award No. 35530
taking into account the specifc type of work involved, with the Board retaining jurisdiction to resolve disputes over remedies.
In this case, without prior notice to the BMWE, the Carrier contracted brush cutting on various dates at locations set forth in the claim. On the property, the Carrier asserted that the brush was cut under the signal lines or along the pole line. The Carrier further took the position on the property that ". . . this was [an] emergency . . . ."
First, brush cutting is BNIWE scope covered work. Rule 66(b) covers ". . . mowing and cleaning right of way (except such cleaning of snow, ice, sand and other materials as signal employees may do in connection with signal and interlocker facilities) ...." There is also no dispute that BMWE forces have performed mowing and cleaning functions in the past.
There is no evidence what steps, if any, the Carrier took to meet its obligations under this Rule - particularly, whether there were employees whose schedules could have been adjusted so as to make them ". . . available . . . to do the work at the time the project is started . . . ."
Third, the Carrier claimed the existence of an emergency. But see the principles governing this case as set forth in Third Division Award 35529:
The Carrier only claimed the existence of an emergency. It did not meet its burden to demonstrate that condition.
Fourth, to the extent the Carrier now defends on the basis that the contractor provided specialized equipment that it did not possess - an argument the Carrier did not raise on the property - the record does not show what kind of specialized equipment the contractor had that the Carrier did not possess. But, in any event, even assuming the Carrier did not have the necessary equipment for this type of project, the Carrier did not explain what efforts, if any, it undertook to obtain that equipment before contracting out the work. See Third Division Award 35532:
In accord with the principles set forth in these cases, the claim has merit. The Claimants were deprived of work opportunities and will accordingly be made whole for those lost opportunities at the appropriate contract rate. The matter is remanded to the parties to determine the number of hours of attributable work performed by the contractor exclusive of hours of brush cutting where the brush interfered with signal or communications lines and related equipment. The Claimants will be compensated based on those hours.
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.