The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, fords 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.
Beginning March 4, 2002, an outside contractor identified as Tompkins Trucking & Excavating Company (hereinafter referred to as "Tompkins") began the task of dismantling six track segments. It is undisputed that the contracting forces consisted of three employees, none of which held seniority or work rights under the Agreement. A number of employees represented by the Organization filed statements describing this work as including "tearing up, stacking and loading out materials from various tracks in South Pekin yards which include IC Connection, Material Track, House Track, Sand Track, Oil Track and Track 19." There is no dispute that the employees representing Tompkins used ordinary equipment to accomplish this work. It is the Organization's position that work of this nature has customarily and historically been performed by the Carrier's forces in connection with their duties maintaining the facilities and structures located on the Carrier's right-of-way. Accordingly, the Organization asserts that pursuant to Rule 1(b) the Carrier was obligated but failed to provide proper written notice to the General Chairman of its plans to assign outside forces to perform said work.
While the Carrier does not credibly deny the fact that work of the character performed by Tompkins employees is of the type regularly performed by its own forces, it defends its action by contending that said work was performed by Tomkins on an "as is-where is" basis. Accordingly, the Carrier asserts that the sale of scrap ties Form 1 Award No. 39305
and rail was not subject to any provisions of the Agreement between the Carrier and the Organization, including but not limited to Rule 1(b).
Ultimately, following requests by the General Chairman for proof of the "as iswhere is" nature of the work as asserted by the Carrier, it produced a four-page sale order with an "effective date 08/15/00." This "periodic sale order" was identified as "sale and removal of scrap rail, ties, OTM and miscellaneous material `as is where is . . . ."' A second document identified the material as "approximately 300 tons of rail" and "approximately 100 tons of OTM." The General Chairman took issue with this sale order as devoid of any specific information upon which the Carrier could conclusively establish its "as is-where is" defense. Subsequently, the General Chairman's May 20, 2003 response provided the following information, which the Board finds helpful:
The foregoing statements referenced by the General Chairman provide the following helpful and relevant information:
A careful review of the foregoing statements reveals a common thread consisting of the fact that while Tompkins removed and retained some of the rail, the Carrier also retained some of it. The Carrier failed to produce sufficient and credible evidence to overcome this conclusion. This, together with the fact that the Carrier did not challenge the claim that the work performed by Tompkins employees is regularly performed by employees represented by the Organization places this case square on all fours with that decided by Third Division Award 24280. In relevant part, the Board, when faced with circumstances substantially similar to those in the instant matter concluded:
We find and hold that the conclusions espoused by the Board in Award 24280 are applicable in the instant matter.
As to the remedy, it is the Carrier's position that because each of the Claimants was fully employed, no remedy is warranted. In rejecting this claim, the Board adopts the conclusion reached by the Board in Award 24280 which held:
For the foregoing reasons, the Board, consistent with the holding of Award 24280, directs the Carrier and the Organization to meet to determine what proportion of the work fell within the violation determined to have occurred. A rough determination of property sold vs. property retained might be that measure. The claim should then be adjusted by payment of such proportion of straight-time hours to appropriate Claimants.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) 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.