The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
On April 22, 2003, the Carrier utilized the services of a contractor to construct berms (dirt fills) at two locations. There is no dispute that the construction of these berms was solely for the purpose of supporting foundations for the installation of signal cases. The issue before the Board is whether the Carrier violated the Scope Rule (Rule 1) by using a contractor for this purpose.
By letter dated May 27, 2003, the Organization filed the instant claim. By letter dated July 2, 2003, the Carrier denied the claim, contending, as it has throughout the procedure, that the construction of dirt berms is not associated with the BNSFIBRS Agreement Rule 1(SCOPE).
The Carrier denied the claim on the basis that the work at issue is not covered by the Scope Rule. In this regard, the Carrier contends that in order to show that the work is scope covered, the Organization must prove that this work has been exclusively performed by BRS-represented employees. The Carrier asserts that the Organization was unable to prove an exclusive right to such work. In addition, the Carrier relies upon two Awards where the Board denied claims filed by the Organization that were substantially identical to the claim now before the Board. Thus, in Third Division Award Form 1
Following a careful review of the positions of both parties during their on-property hand of this case, the Board finds in favor of the Claimants. In doing so, the Board first observes that the current Scope Rule is indeed substantially different from the one relied upon by the Board in Awards 20336 and 20465. While the terms "appurtenance and appliance" remain as a carryover from the prior Rule, the current Rule is much more inclusive, covering "foundation support, concrete and form work of all classes in connection with installing, repairing, or maintaining any signal apparatus or device." In a more recent case decided by Public Law Board No. 5565, Award 12 and authored by Referee Eischen, the same Referee who authored Third Division Award 20465, the Public Law Board, in sustaining the claim before it, determined that the construction of a retaining wall built for the specific purpose of supporting and holding the earthen fill surrounding a signal, which the Board labeled as a "wall or berm," could be fairly described as an "appurtenance" of the signal system. As such PLB 5565 determined that work of its construction was reserved for signal forces under the "[p]lain language of the NIRC/BRS Agreement Scope Rule." As such, we find that the construction of a berm (dirt fill) for the sole purpose of supporting foundations used for the installation of signal cases can properly be considered as an "appurtenance." Accordingly, the work at issue is covered under Rule 1.
In addressing the Carrier's "exclusivity" argument, the Board holds that the Organization need not carry the burden of demonstrating that the work at issue has been Form I Award No. 40212
performed "exclusively" by BRS-represented forces because "[t]hat doctrine is not applicable to situations where work is contracted to an outside contractor. (See Third Division Award 25934 together with cases cited therein.) Accordingly, following a careful review of the statements furnished as part of the Organization's on-property handling of this case, we are satisfied that the nature of the work at issue has been performed by BRSrepresented forces for a sufficient period of time preceding the instant claim such that it can be said that such work has been customarily performed by BRS-represented forces.
Finally, as to the remedy, the Board finds that the fact that the Claimants were employed at the time outside forces performed the work at issue does not extinguish the right to relief because the Claimants lost additional work opportunities as a result of the Carrier's violation of the Agreement. (See Third Division Award 32125).
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.