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.
In this claim, filed on behalf of Machine Operator C. E. Beamon ("Claimant") the Organization asserts violations of the Scope Rule and failure/refusal to comply with the good-faith notice and conference requirements of the Note to the Scope Rule, including Appendix 1, the so-called Berge-Hopkins Letter of Understanding dated December 11, 1981. It is not disputed that on Tuesday and Wednesday, September 22 and 23, 1998, Lenz Excavating LLC, a subcontractor retained by the Carrier, spread fresh rock (ballast) over the deck on a newly constructed Highway 41 railroad bridge located in Milwaukee, Wisconsin, on the West Allis spur line. Machine Operator Beamon, an employee in the Carrier's Engineering Services Crane Sub-department, apparently also worked on that project, transporting the ballast with his regularly assigned front-end loader.
Review of the record evidence shows that the Organization made out a prima facie case in support of its claim that the Carrier violated the Agreement by subcontracting Agreement-covered work without notice/conference. In handling on the property, the Carrier asserted, "according to the Carrier notes, this project was discussed with the BMWE in advance and the Organization was advised that a contractor would be doing all the work up to but not including actually building the track itself on the property." However, the Carrier proffered no evidence at all when challenged by the General Chairman as to the accuracy of that allegation. The Carrier similarly failed to substantiate bare assertions of other affirmative defenses, i.e., need for specialized equipment and lack of dominion and control over the work. Moreover, on the latter point, in handling on the property the Organization presented a receipt for the subcontracted work clearly showing the customer name as "C. P. Rail, c/o Pat Poeschel" and providing Roadmaster Poeschel's company address.
Issues such as equipment availability and efficiency, employee skills, etc., are the very types of matters that are intended for discussion in the conferences Form 1 Award No. 37051
mandated by the contracting out of work Rule. It is a seminal principle that a Carrier who fails/refuses to provide such mandated notice and conference opportunity may not raise such issues ex post facto. See Third Division Awards 25967 and 30977. Had the Carrier complied with Article IV and provided the required advance written notice, the General Chairman would have had the opportunity to request a meeting to discuss the matter and the parties could have engaged in good-faith discussions during which they may have identified an alternative to the use of outside forces. Given the blatant violation of the notice/conference requirement, this claim is sustained.
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.