The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, fnds 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.
The work in dispute here was a project to renovate one of the Carrier's buildings at Bensenville, Illinois. Although the Statement of Claim alleges that the Carrier failed to properly notify the General Chairman of its plan to contract the work, the Organization's contention is not supported by the record. It is undisputed that notice was served by letter dated November 12, 1999 which read, in pertinent part, as follows:
The notice also asserted that the Carrier was not obligated to fragment the project. It went on to invite the Organization to discuss the notice in conference and suggested November 16, 1999 as the date to meet. Although the precise date of the conference was not established in the record, it is clear that the parties did meet but did not reach an agreement about the Carrier's plans.
It appears the basis for the Organization's notice allegation is its suspicion arising from the text of an e-mail it obtained on the property. The e-mail is dated December 21, 1999 and is between two Carrier officials. The e-mail notes that the contractor ". . . has already begun work on the project based on a verbal request and "letter of intent" from the Railroad. According to the claim filed by the Organization, actual work on the project did not begin until January 3, 2000. What work the contractor had already begun as of December 21 is not established in the record.
The text of the e-mail cuts both ways. While it is possible that the Carrier made its contracting decision before issuing the notice or conducting the conference, the actual timing of events may also be entirely proper. The e-mail was dated more than one month after the parties apparently met to conference on the notice. That allowed ample time for properly initiating the contracting transaction. Under the circumstances, it was the Organization's sole burden of proof to properly support its contention that the Carrier failed to provide proper notice. On the record before Form I Award No. 38963
the Board, the Organization has not done so. Accordingly, this aspect of the claim must be denied.
Turning to the merits, we find that the facts of this claim involve contracting principles that have been well established by numerous Board Awards. Generally speaking, in the absence of an emergency or similarly compelling circumstances, carriers may not contract out work within the scope of a Collective Bargaining Agreement that is reserved for performance by covered employees. Whether the specific work in dispute is reserved depends on the language of the applicable scope provisions. Work can be reserved by explicit language so stating in the scope rule. However, where, as here, the scope rule is general and does not contain any explicit reservation language, then the Organization must establish that the work has been customarily, traditionally, and historically performed by covered employees to demonstrate such reservation of work. In addition, where substantial projects are contemplated that involve significant amounts of both reserved and non-reserved work, the project can be viewed as a whole whereby the carrier is not required to fragment or piecemeal the overall project for the purpose of determining whether portions of the work could be performed by carrier employees.
On this record, the Organization submitted extensive documentation establishing that covered employees have performed significant portions of the disputed work. However, the evidence does not establish that they have ever performed heating, ventilating, air conditioning (HVAC) system installations or fabricated and installed any of the associated duct work. Other evidence in the record estimated the cost of the HVAC portion of the overall project to be some 31% of the contract amount of $100,000.00. This percentage is substantial and represents a significant component of the project. Its magnitude provides the requisite support for the Carrier's determination that the overall project need not be fragmented. In addition, our review of the record does not reveal evidence establishing that the Carrier's employees could have obtained any needed licenses and permits for the project.
After careful review of the record before the Board, we find that the Carrier did not violate the Agreement as alleged in the claim. Form i Award No. 38963
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.