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.
Without prior notice to the Organization, the Carrier utilized a contractor to pick up and haul tie plates for re-use. This claim followed.
The Carrier concedes that it did not give prior notice to the Organization ("You claim that DM&IR did not notify you concerning the use of a contractor to perform this work. That is true."). The Carrier therefore violated its notice obligations under Supplement No. 3(c).
The fact that the Carrier used a contractor "in the interests of safety for train crews" because its crane was engaged elsewhere does not qualify as an emergency under the notification provisions. There was no emergency. However, even if an emergency, the Carrier was still obligated to ". . . attempt to reach an understanding with the General Chairman in conference, by telephone if necessary . . . ." Even that was not done. Form 1 Award No. 37352
The Carrier's failure to give the required notice is not a mere technical violation. The parties agreed upon a notice and conference procedure for situations where the Carrier intends to contract work. The Carrier must be held to the clear language of that negotiated procedure.
With respect to the remedy, the fact that a Laborer worked along with the contractor and received B-Machine Operator pay does not relieve the Carrier from a monetary remedy. Had the Carrier given the General Chairman the required notice, perhaps that is the arrangement they would have been able to work out. But, by failing to give the required notice, the procedure designed by the parties in Supplement 3(c) was not allowed to function.
Here, because the Carrier failed to give the required notice, a Crane Operator lost a potential work opportunity. The fact that the Carrier defended the claim on the basis that "[t]he contractor was used in this manner because the DM&IR crane and crane operator were working elsewhere picking up scrap materials" sufficiently shows that a Crane Operator was deprived of a potential work opportunity. That individual should be made whole for the amount of hours of work performed by the contractor. See Third Division Award 30943 (between the parties where, for the remedy due to lack of proper notice, it was held that "[tlhe affected employees lost a work opportunity and shall be made whole for the number of hours it took the contractor to remove the structures"). See also, Third Division Award 28711 (between the parties, sustaining a claim for failure to give notice and making employees whole for lost work opportunities as requested in the claim).
The Carrier's reliance upon Third Division Award 26832 between the parties is not persuasive. There, the Board found that there was a ". . . mutual drift away from contract compliance" and therefore denied the Organization's request for a monetary remedy. However, the Board in that case advised the parties that before the terms of the Agreement can be strictly applied, the Carrier should be put on notice. In a similar situation in Third Division Award 28411, the Board again denied monetary relief, but advised the Carrier that prior Awards such as Third Division 26832 ". . . should, therefore, serve as notice to the parties involved that in the future the Board may well be disposed to conclude differently on the issue of relief." Third Division Awards 28711 and 30943 which made whole employees for lost work opportunities due to the Carrier's failure to give the required notice issued after Third Division Awards 26832 and 28411. The notice violation in this matter occurred in 2000 when the Carrier was previously warned by the Board that Form 1 Award No. 37352
monetary remedies could be imposed for future violations and the Carrier was further aware of the make whole remedies actually imposed in Third Division Awards 28711 and 30943. The Carrier was therefore on notice of the potential consequences of its failure to give the required or proper notice before contracting work. Yet, it again failed to give the mandated notice. A full remedy is therefore required.
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.