Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38147
Docket No. MW-37471
07-3-02-3-556
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(CP Rail System (former Delaware and
( Hudson Railway Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Duckworth) to perform Maintenance of Way work (sort
and transport track material) from its yard in Taylor,
Pennsylvania to its yard in Binghamton, New York on dates
beginning June 1 and continuing through July 19, 2001
(Carrier's File 8-00206 DHR).
(2) The Agreement was further violated when the Carrier failed to
comply with the advance notice requirements regarding its
intent to contract out the aforesaid work or make a good-faith
effort to reduce the incidence of subcontracting and increase
the use of its Maintenance of Way forces as required by Rule 1
and Appendix H.
(3) As a consequence of the violations referred to in Parts (1)
and/or (2) above, Claimants J. Bruno and R. Gittins, Sr. shall
be compensated for sixteen (16) hours' pay; Claimant A.
Kovaleski shall be compensated for thirty-nine (39) hours' pay;
Claimant Daniel Kovaleski shall be compensated for twentyfour (24) hours pay; Claimant J. Mesiti shall be compensated
for thirty (30) hours' pay; Claimant J. Kordish shall be
compensated for twelve (12) hours' pay; Claimant Donald
Kovaleski shall be compensated for eight (8) hours' pay;
Form 1 Award No. 38147
Page 2 Docket No. MW-37471
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Clamant R. Mullen shall be compensated for thirty-two (32)
hours' pay; Claimant P. Newcomb shall be compensated for
twenty-four (24) hours' pay; and Clamant R. Penzone shall be
compensated for three (3) hours' pay. `Due to the violations
listed above, the Carrier will pay each claimant, man for man,
for all hours worked by the contractors' Employes. At the
Carriers employees respective rates of pay including hours that
was worked after 3:30 put that would have been at the overtime
rate of pay."'
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.
The instant claim was initially filed on July 6, 2001. In its September 17, 2001
denial, the Carrier contended that the work at issue was not reserved exclusively to
BMWE-represented employees and, further, that the Carrier had historically hired
outside contractors to transfer and deliver materials and supplies. In addition, it
contended that it did not have available the equipment to transport the material in
question at the time it was required to be transported.
In its November 12, 2001 appeal, the Organization attached several
statements ffrom BMWE-represented employees in which each asserted that he had
transported and unloaded similar material from the Taylor Yard to Binghamton,
using the Carrier's own equipment. The Carrier denied the appeal on December 5,
2001. In Third Division Award 26691, the Board sustained a similar claim between
the parties to this dispute. Then as now, the Carrier subcontracted for the transport
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Page 3 Docket No. MW-37471
07-3-02-3-556
of company materials without proper advance notice to the Organization. After
careful review of the record, the Board sees no reason to depart from established
on-property precedent. The Board therefore finds that the Carrier failed to provide
advance notice of its intent to subcontract the scope covered work of transporting
Carrier-owned track materials between its yards in Taylor, Pennsylvania, and
Binghamton, New York.
The parties are directed to meet for the purpose of ascertaining the actual
hours of work performed by the outside contractor and the allocation of those hours
among the Claimants. The Carrier shall then pay the Claimant's their allocated
hours at the straight time rate in light of the proven notice violation.
AWARD
Claim sustained in accordance with the Findings.
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 23rd day of April 2007.