Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35975
Docket No. MW-32942
02-3-96-3-322
The Third Division consisted of the regular members and in addition Referee
Edwin H. Berm when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Monon
( 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 to perform Maintenance of Way and Structures Division
work (track construction and reconstruction, removal of crossties,
track panels, etc.) between Mile Posts 118 and 122 in LaFayette
Yard at LaFayette, Indiana beginning October 17 through
November 18, 1994 (System File 1-003-95/12 (95-0501) MNNJ.
2. As a consequence of the aforesaid violation, Foreman S. L.
Huddelston, Machine Operators D. E. Hancock, R. D. Miller and
Trackmen S. A. Truax, D. Deardurff, E. L. Nigg and A. J. Bland
shall each be allowed eight (8) hours' pay at their respective
straight time rates for each Monday through Friday worked by the
outside forces, two (2) hours' pay at their overtime rates for each
Monday through Friday worked by the outside forces, and ten (10)
hours' pay at their overtime rates for each Saturday and Sunday
worked by the outside forces."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 35975
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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.
On October 6, 1994, the Carrier notified the Organization as follows:
"This will serve as Carrier's notice of its intent to contract for the
construction of 1,500 TF Lead Track to the Bids facility in LaFayette
Yard; surfacing of 3,00[01 L.F. of Yard Tracks; removal of 1,200 TF of
former main, including 2 road crossings immediately south of Fifth Street;
Pick up of 3,000 L.F. of rejected lengths of CWAR and stockpile; removal
of 25, 39 foot panels and stockpile; and pickup and disposal of crossties and
crossing timbers between M.P. 118 and 122; LaFayette, Indiana, Monon
Seniority District, Chicago Division.
It is necessary to contract the foregoing due to the fact that the Carrier
does not [have] equipment laid up and forces laid off, sufficient both in
number and skill with which the work might be done."
Conference between the parties did not change the Carrier's stated intent. The
work was then contracted out and was performed by outside forces during the period
October 17 through November 18, 1994.
The record further indicates that prior to the Carrier's contracting out the work,
the Claimants were assigned to that work, but were taken off that assignment when the
Carrier brought an in-track welding truck on the property and the Claimants were
assigned to work with that equipment. The record further indicates that the Claimants
were subsequently furloughed for approximately three months.
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The Carrier responded to the claim as follows:
"Our investigation of your claim reveals that due to a shortage of
manpower a contractor was used to finish the construction project south
of Fifth Street. The Carrier was mandated by the State of Indiana to
finish this project by November 30, 1994. Due to in-track welding
operations and extra gangs working with the tie unit there were no forces
available to perform this work. In addition, a Notice-Of-Intent was sent
to the Federation . . . ."
In subsequent correspondence, the Carrier reasserted that"... the work made
subject herein was mandated by the State of Indiana to be completed by November 30
[and d)ue to the shortage of manpower, this work had to be contracted out and you were
so notified."
The Organization requested evidence from the Carrier concerning the Carrier's
asserted requirement from the State of Indiana that the Carrier had to complete the
project by November 30, 1994. The Carrier ultimately responded, stating that
". . . Carrier's utilization of forces in such a manner was compelled by the State of
Indiana, mandate, and its own track project curfews."
In sum then, the record shows that the Claimants were working on track work;
the Carrier reassigned them to work with an in-track welding truck; the Carrier
subcontracted the track work taking the position that there was a shortage of manpower
and equipment and that it was mandated by the State of Indiana to complete the work
by November 30, 1994.
RULE 60 - Contracting Out provides:
"In the event a carrier plans to contract out work within the scope of the
applicable schedule agreement, the carrier shall notify the General
Chairman of the organization involved 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.
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If the General Chairman, or his representative, requests a meeting to
discuss matters relating to the said contracting transaction, the designated
representative of the carrier shall promptly meet with him for that
purpose. Said carrier and organization representatives shall make a good
faith attempt to reach an understanding concerning said contracting, but
if no understanding is reached the carrier may nevertheless proceed with
said contracting, and the organization may file and progress claims in
connection therewith.
Nothing in this Rule (Article IV of the May 17, 1968 Agreement) shall
affect the existing rights of either party in connection with contracting out.
Its purpose is to require the carrier to give advance notice and, if
requested, to meet with the General Chairman or his representative to
discuss and if possible reach an understanding in connection therewith."
We find that the Carrier improperly contracted out the work
First, clearly, the work was scope-covered and the Claimants were sufficiently
skilled and capable of performing the work. the Claimants were performing the work
before they were pulled off the project and reassigned to other work.
Second, in its Submission to the Board, the Carrier argues that its only obligation
was to give notice and hold a conference:
"Ile Board will note there are nQ specific conditions stipulated in this
contracting rule for Carrier to meet in order to contract scope covered
work with the exception of Carrier being required to (1) notify the
Organization of its intent to contract the work in question; and (2) meet
with the general chairman in an attempt to reach an understanding
concerning said contracting. Both of these conditions were met by Carrier.
in accordance with the above rule . . . ."
With respect to Rule 60, the Carrier is perhaps technically correct. It gave notice
and held a conference.
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However, in this case, there is a further obligation. While much has been said
about the strength/weakness and even utter chaos caused by the December 11, 1981
Hopkins/Berge letter, nevertheless, that letter states:
"The carriers assure you that they will assert good-faith efforts to reduce
the incidence of subcontracting and increase the use of their maintenance
ofway forces to the extent practicable, including the procurement of rental
equipment and operation thereof by carrier employees."
w
Here, the evidence shows that the Claimants were performing the work; the
Carrier reassigned the Claimants away from the work; the Carrier then subcontracted
that very work asserting that there was a manpower shortage; the Carrier further
stated that there was a time constraint placed on it by the State of Indiana, but, after the
Organization requested specifics concerning that time constraint, the Carrier merely
reiterated that there was a time constraint. What the status of this record shows is that
the asserted manpower shortage was created when the Claimants were taken off the job
by the Carrier and when the Organization wanted to know the basis for the State of
Indiana's alleged deadline, the Carrier effectively declined to demonstrate it. If that
kind of record evidence is permitted to justify subcontracting, then the obligations in the
Hopkins/Berge letter - no matter how vague or uncertain they may be - would be
rendered an absolute nullity. It is a fundamental rule of contract construction that
negotiated language be interpreted to have at least some meaning. If adopted, the
Carrier's arguments in this case on these facts would be contrary to that rule of contract
construction. On the merits the claim shall be sustained.
With respect to the remedy, the Claimants (who were subsequently furloughed)
lost work opportunities when they were deprived of the ability to perform the work
subcontracted by the Carrier - indeed, the very work they were previously performing.
The Claimants shall therefore be made whole. The matter is remanded to the parties
to determine the number of hours of work performed by the outside forces. The
Claimants shall be made whole at the applicable rates called for by the Agreement.
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AWARD
Claim sustained in accordance with the Findings.
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 19th day of March, 2002.