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.
Claimant R. Merrow established and holds seniority as a Group 2 Machine Operator within the Track Department and at the time of the dispute was regularly assigned to operate a bulldozer that he transported throughout the Carrier's system with a lowboy tractor-trailer.
On January 22, 2001, the Carrier transmitted a notice to General Chairman P. Geller advising that it intended to contract out the work of asphalt paving of approximately 200 road crossings. The General Chairman responded in a letter dated January 29, 2001 advising that the Organization was opposed to all contracting out and requested that a meeting be held to discuss the issue.
The Organization contends that the Agreement was violated when the Carrier assigned E&L Paving the work of asphalt finishing in Valparaiso, Indiana, on April 2 and 3, 2001. First, it claims that the notice prepared by the Carrier was faulty in that it was overbroad, covering numerous situations and not just the one in question. Second, the Organization claims that it was improper for the Carrier to contract out the abovementioned work, which is work that is properly reserved to the Organization.
According to the Organization, the Carrier had customarily assigned work of this nature to BMWE-represented employees. The Organization further claims that the work in question is consistent with the Scope Rule and the employees were fully qualified and capable of performing the designated work. The work done by E&L Paving is within the jurisdiction of the Organization and, therefore, the Claimant should have performed said work. The Organization argues that because the Claimant was denied the opportunity to perform the work, the Claimant should be compensated for the lost work opportunity. Form I Award No. 39467
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that the work contracted out was that of asphalt finishing, which the Carrier contends does not belong to BMWErepresented employees under either the express language of the Scope Rule or any binding past practice. Further, as to the alleged notice violation, the Carrier contends that the notice was proper and consistent with past practice.
We find that the Carrier did give proper notice to the Organization of the proposed contracting and that the Carrier acted within the confines of the relevant Rule. Thus, we find that the notice was sufficient and was not issued in bad faith.
Next, we reach the issue of whether the work in question has been traditionally and customarily performed by BMWE-represented employees. In Special Board of Adjustment No. 1016, Award 150, that Board framed the scope issue as follows:
In the instant case, we carefully reviewed all evidence regarding whether the Organization has proven that the work involved belongs to BMWE-represented employees. First, we note that the work of asphalt finishing is not specifically identified in the Scope Rule.
We next turn to whether there is sufficient evidence for the Organization to have proven that BMWE-represented employees have customarily, traditionally, and historically performed the disputed work. In the instant case, while the Organization presented some evidence to show that the work in question belonged to RMWErepresented employees, that evidence is insufficient for the Organization to meet its Form I Award No. 39467
burden of proof. See Public Law Board No. 6537 above. See also Third Division Award 37365; Public Law Board No. 4402, Awards 20 and 28; and Public Law Board No. 6537, Award 1.
Based on the evidence in this record as well as the above-cited precedent, we cannot find that the work of asphalt finishing is either definitively encompassed within the plain language of the Scope Rule or that the Organization has been able to prove that this work has historically and traditionally been performed by members of the Organization.
Thus, having determined that the notice was proper and that the work was not within the scope of the Agreement, we find that the Organization has not met its burden of proof and the claim is therefore denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.