Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38002
Docket No. SG-37733
06-3-03-3-74

The Third Division consisted of the regular members and in addition Referee Elizabeth C. Wesman when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:


STATEMENT OF CLAIM:



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.


Form 1 Award No. 38002
Page 2 Docket No. SG-37733


The incident precipitating this case is not in dispute. On Monday, February 25, 2002, the Carrier hired an outside contractor to install a utility pole at the East End of the Alton and Southern Railway Company property. The Organization filed a claim on February 26, 2002. The Organization contended that its Scope Rule covers the work at issue and the Claimants, who were not registered absent and were available, should have been used. The pertinent part of the Signalmen's Scope Rule reads as follows:










The Organization appealed the Carrier's denial on March 25, 2002, reiterating its position that the Scope Rule had been violated. In addition, it protested the form of the Carrier's denial. Specifically, the Organization objected to the total absence of any stated reasons for the Carrier's denial of the claim. It noted that Rule 700 (a) provides that should a claim be disallowed, ". . . the Carrier shall, within sixty (60) days from the date same is filed, notify whoever filed the claim . . . in writing of the reasons for such disallowance." The Organization pointed out that Rule 700 also provides that if the claimant is not so notified, ". . . the claim . . . shall be allowed as presented."

Form 1 Award No. 38002
Page 3 Docket No. SG-37733
06-3-03-3-74

In its denial of the Organization's appeal, the Carrier contended that its initial declination was sufficient to satisfy the Agreement, and that various Boards had agreed with the Carrier's position on this matter. It maintained that stating that it had reviewed the Agreement and found no support for the Organization's position was a sufficient denial to meet the requirements of Rule 700 (a). The Carrier further contended that the issue of contracting out the work at issue had already been decided in Third Division Award 33016, and alleged that 11... for the same reasons set forth in that award, the use of contractors was necessary here, too."


While the Carrier's initial declination can most charitably be described as "bare bones," it is true that a host of Boards have found that such a statement is a sufficient response to an Organization's claim that the Agreement has been violated. However, in this case, the matter of whether the work at issue was covered under the Scope Rule, and if so, were the Claimants entitled to do the work remains in dispute. In its denial of the Organization's March 25, 2002 appeal, the Carrier contended that it was forced to contract out the work for the same reasons set forth in Third Division Award 33016. Yet the work at issue there was performed some six years before the work at issue here, and the Carrier provided no concrete evidence on the record that the conditions that gained it a positive result in the prior decision obtain here. Further, the Organization has shown on the record that there has been at least one occasion in which necessary equipment was leased from a contractor to enable Signalmen to perform the work in question.


Absent any evidence beyond bare assertions by the Carrier, the Board is not about to assume that the conditions existing in 1995 were identical to the conditions existing in 2005. We are not privy to the fact pattern in that case, and we make no judgments regarding the Board's decision thereon. Considering all the evidence presented in this case, there can be little doubt that the work at issue here is encompassed by the language of the Scope Rule. The Carrier has not shown on this record any credible reason why the work was not given to the Claimants, who were available and able to work. Accordingly, the claim is sustained.




    Claim sustained.

Form 1 Award No. 38002
Page 4 Docket No. SG-37733
06-3-03-3-74

                        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 25th day of October 2006.