This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This docket consolidates two separate claims, without objection, due to the commonality of facts and issues.
By letter dated February 26, 1996, the Carrier informed the General Chairman of its intent to contract the following work:
The sole reason stated for the contracting plan was that the Carrier did not have the equipment to do the work. The notice also said work was expected to begin on March 18, 1996.
The parties met in conference on March 11, 1996 to discuss the plan. While the record does not provide specific detail about the discussion that transpired, the Organization disputed the plans and no Agreement was reached.
The work actually began on Tracks 13,14, and 15 at Gibson Yard on September 10, 1996 and continued through October 15. Each claim covers roughly one-half of the days worked by the contractor.
On the property, the Carrier did not contend that the track work involved was outside the scope of theAgreement; nor did the Carrier make any assertions or provide any specific information to the effect that the magnitude of the project was so large that it exceeded the capabilities of the employees. The new information on these points that was presented for the first time in its Submission is too late to be properly considered. Its sole defenses on the merits were the general assertions that the Carrier did not have the equipment or the qualified operators to perform the work.
In addition to the foregoing, the Carrier let stand unrefuted four significant Organization assertions. First, that leased equipment was available from a number of vendors (the Organization named one vendor located within rive miles of the job site); second, that the Carrier made no effort to address the leased equipment issue; third, that the Carrier forces had done the exact type of work several times in the past three years. And finally, that the Carrier had failed to comply with its good faith efforts obligation under the December 11, 1981 Berge-Hopkins Letter of Agreement. By long established precedent, these unrefuted assertions of material fact must be accepted as matters successfully proven.
In light of the foregoing, we are compelled to find that the disputed work was contracted in violation of the parties' Agreement. Form 1 Award No. 35771
Regarding the remedy, the Carrier did not refute the Organization's assertion that numerous employees had been furloughed for several months and thus members of the Organization were deprived of extended employment. The Carrier noted only that the Claimants were fully employed during the claim dates or were either on rests days or otherwise experiencing certain sporadic unavailability.
On this record, we are persuaded the Claimants did suffer lost work opportunities. Therefore, the Carrier's full employment defense pertaining to the claim dates does not bar the award of a monetary remedy.
On this record, there is no proper basis for concluding that the Claimants could not have performed the disputed work had the Carrier undertaken good faith efforts to obtain necessary equipment and schedule its own employees accordingly. Accordingly, we remand this claim to the property to ascertain the actual number of hours worked by the contractor. The Claimants shall be compensated for the appropriate number of hours at their respective straight time rates of pay.
Because we have determined the disputed work was contracted to outsiders in violation of the Agreement, the Carrier funds paid to the contractor must be excluded from the ratio calculation pertaining to the 1992-1996 five-year period as provided in Article X Section 1 of the parties' Agreement.
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.