This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This claim protests the Carrier's contracting out the fabrication of 100 bridge walkway supports ("figure 4's") without advance notice to, discussion with, and concurrence by the General Chairman as a violation of the Scope Rule. The pertinent sections of that rule are as follows:
The record reflects that for the past eight years much of the work of fabricating figure 4's has been performed by B&B Welders, with the help of Mechanics, in the Carrier's shops at Wilmington, Delaware. During that time the Carrier ordered the material from Penn Fabrication and it arrived as steel angle, not as a finished product. During the week of January 21, 2002 the Carrier accepted delivery of 100 fully fabricated galvanized figure 4's from Penn Fabrication for a total cost of $12,000.00. Form 1 Award No. 37696
The Carrier had not used galvanized figure 4's previously and was not equipped to perform the galvanizing process. Written statements from Foreman Carr, Welder DiEleuterio and Mechanic Black establish that the figure 4's are designed to specifically meet the Carrier specifications, and that the 100 prefabricated figure 4's fell short of meeting specifications in certain areas and could not be easily modified because the galvanized coating became toxic when exposed to the heat of welding or burning.
The claim was filed with two different Carrier representatives seeking the total cost of the goods to be split among the Claimants. Both Carrier officers responded denying the claim, asserting that it purchased prefabricated material and did not contract out, and pointing out that the claim was excessive because it included the cost of materials and delivery as well as labor. The Organization's appeals of May 22 and June 12, 2002 seek compensation on behalf of the Claimants "for all time made" by Penn Fabricating. On the property and before the Board, the Carrier points out that the Organization amended the monetary portion of the claim, a fatal flaw, and argues that it was procedurally invalid. The Carrier's assertion that $8600.00 of the cost of the prefabricated figure 4's was attributable to the cost of materials and delivery and the hot-dip galvanizing process which the Carrier was not equipped to perform was not rebutted by the Organization.
The Organization argues that the fabrication of figure 4's falls within the scope of the Agreement because it is construction and maintenance of bridges which has customarily been performed by B&B employees, and that the Carrier was required not only to give the General Chairman notice of its intention to contract out this work, but obtain his written concurrence before doing so, citing Special Board of Adjustment decisions of Arbitrators Wallin and Fishgold on Track Panel and Pre-Plated Ties disputes it had with the Union Pacific Railroad Company. It asserts that the Carrier's "purchase of materials" defense is a ruse because historically what has been purchased from Penn Fabrication is the angle steel material, not the fabricating of such material, and that these items were not pre-maufactured goods on the shelf, but had to be made to the Carrier's specifications by the contractor. The Organization contends that the monetary remedy should be sustained due to the loss of work opportunity for the Claimants, despite their being "fully employed" and to maintain the integrity of the Agreement, relying on Third Division Awards 27614 and 31996; Public Law Board No. 6671, Awards 1, 2 and 3.
The Carrier initially argues that the claim is procedurally invalid because it was amended on appeal, citing Third Division Awards 15847, 29272 and 36020. With respect to the merits, the Carrier contends that the Scope Rule does not apply to the Form I Award No. 37696
purchase of prefabricated materials, relying on Third Division Awards 27902 and 32598. The Carrier asserts that the Organization failed to establish that the fabrication work is reserved exclusively to B&B employees by Agreement or practice or that the Carrier is restricted from purchasing component parts from outside vendors. See Third Division Awards 25523, 26236, 27571, 27697, 28213, 31245 and 31829. It relies on Third Division Award 32058 for the proposition that a carrier is free to purchase parts, whether off the shelf or manufactured to specifications, and that such purchase does not infringe upon employees' rights to the work because the parts or materials do not belong to the Carrier until after they have been manufactured. Finally the Carrier notes that the claimed amount is excessive because it includes costs not associated with the actual fabrication work in issue.
Initially we note that the Board is unable to accept the Carrier's assertion that the Organization substantially amended its claim necessitating its dismissal, which was the finding in Third Division Awards 15847 and 36020. The Organization's appeals "for all time made" were apparently attempting to respond to assertions made by the Carrier in its denials as to components of the total cost of the contract. The Carrier was fully advised what the Organization was seeking and the basis of its claim, facts which did not change throughout the claim processing.
A careful review of the record convinces the Board that, under the particular facts of this case, the Organization established a prima facie showing that by both language and practice, the fabrication of figure 4's was historically and customarily performed by BMWE-represented employees. The Carrier's assertion, without proof, that it had purchased prefabricated supports on several occasions in the past does not adequately rebut the direct evidence of employees that they have performed the fabrication of figure 4's from angled steel furnished by Penn Fabrications for at least the past eight years. Under the language of the Scope Rule of the Agreement, the Carrier was obliged, at a minimum, to give the Organization notice of its intention to contract out such fabrication, and an opportunity to discuss the matter. There is no doubt that the Carrier retains the right to purchase prefabricated goods without violating the scope clause of the Agreement (Third Division Award 32058). In this case there is no challenge to its obtaining the angled steel from which the figure 4's were fabricated. It had consistently done so in the past. What is new in this case is the galvanizing process, which had not been performed by BMWE-represented employees under the scope of the Agreement previously. The Carrier was obliged to discuss its plans to have such work contracted because it was accomplished as part of the fabrication process. Had that aspect of the work been separated from the fabrication, the Carrier's arguments might hold more weight. Form 1 Award No. 37696
Accordingly, we conclude that by failing to comply with the process for notification and discussion set forth in the Scope Rule in this case, the Carrier denied the Organization an opportunity to retain the fabricating portion of the work for BMWE-represented employees, who, the record establishes, had to make adjustments to the figure 4's for them meet the Carrier specifications. Absent a showing that this work could not have been accomplished by the Claimants at a time other than their scheduled working hours, the Carrier's "fully employed" defense cannot defeat their entitlement to a monetary remedy for this loss of work opportunity. See Third Division Award 31996. Because the Carrier raised the excessiveness of the remedy requested on the property, and presented unrebutted evidence that $8600.00 of the cost of the contract was not attributable to the fabrication process, the Claimants shall be compensated their proportionate share of the balance of $3400.00.
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.