Form 1 NATIONAL RAILROAD ADJUSTMENT 130ARD
THIRD DIVISION
Award No. 36508
Docket No. MW-35598
03-3-99-3-519
The Third Division consisted
of
the regular members and in addition Referee
Ann S. Kenis when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Great Lakes Construction) to make grade for a new track
alongside the Indianapolis Line between Mile Posts CP 17 and CP
54 beginning on August 18, 1997 and continuing (System Docket
MW-5174).
(2) The Agreement was violated when the Carrier assigned outside
forces (Great Lakes Construction) to perform on-track brushcutting
along the right
of
way on the Indianapolis Line between Mile Posts
CP 17 and CP 54 beginning on August 31, 1997 and continuing
(System Docket MW-5173).
(3) The Carrier further violated the Agreement when it failed to
furnish the General Chairman with good-faith written notice
of
its
intention to contract out the work referenced in Parts (1) and (2)
above as required by the Scope Rule.
(4) As a consequence
of
the violations referred to in Parts (1), (2)
and/or (3) above, the four (4) senior Class 2 Machine Operators and
the senior track foreman on the Columbus Seniority District will
each be allowed ten (10) hours' pay at their respective rates for
each day the outside contractor performs the aforementioned scope
covered work."
Form I Award No. 36508
Page 2 Docket No. MW-35598
03-3-99-3-519
FINDINGS:
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.
Parties to said dispute were given due notice of hearing thereon.
As Third Party in Interest, the Brotherhood of Railroad Signalmen was advised
of the pendency of this dispute, but chose not to file a Submission with the Board.
There are two claims presently before the Board for determination. The first,
MW-5174, involves the Carrier's use of a contractor for site preparation and other
assorted sub-ballast work in connection with the installation of a new track structure
between Greenwich, Ohio, and Berea, Ohio. The second, MW-5173, involves the
incidental brush cutting that was done during the project. The Organization contends
that the work in both claims was scope covered and, therefore, advance notice to the
General Chairman was required prior to contracting out. The following is the Scope
Rule relied upon by the Organization:
SCOPE
"In the event the Company plans to contract out work within the scope of
this Agreement, except in emergencies, the Company shall notify the
General Chairman involved in writing as far in advance of the date of the
contracting transaction as is practicable and in any event not less than
fifteen (15) days prior thereto.
***"
Notwithstanding the Organization's argument, we find that the requisite advance
notice was given in this case. The Carrier's February 27, 1997 letter to the General
Form 1 Award No. 36508
Page 3 Docket No. MW-35598
03-3-99-3-519
Chairman clearly covers the work in dispute and complied with the Agreement's
procedural requirements.
Once the Carrier fulfilled its notice obligations under the Scope Rule of the
Agreement, the burden shifted to the Organization to request a conference to discuss the
proposed work involved in the contracting transaction. It was at that point that the
Organization had the opportunity to make its case for using Carrier forces prior to the
work being contracted out. There is no evidence that it did so in the matter at hand.
Having failed to perfect its claims by requesting a conference in accordance with
the Scope Rule requirements, we must deny the claims in their entirety.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 23rd day of April 2003.