The Third Division consisted of the regular members and in addition Referee Ann S. Kenis when award was rendered.
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.
On February 17, 2004, the Carrier provided notice to the Organization of its intent to use an outside contractor for roof replacement at the Latta Diesel Shop. A conference was held on February 27, 2004 at which time the parties were unable to reach an understanding concerning the utilization of BMWE-represented forces. Beginning May 5, 2004, the Carrier contracted out the roofing work at the Latta Diesel Shop.
The Organization thereafter filed the instant claim, alleging that the contractor expended 1,286 man hours using common roofing tools and equipment to remove and replace the old roofing material. The Organization contended that this was scope-covered work that was traditionally, customarily, and historically performed by BWME forces. The Organization maintained that the Carrier failed to make a good faith effort to reduce the use of contractors as required by Appendix I when it subcontracted work which could have been performed by the Claimants, who were fully qualified and available during the time period in question. In support of its position, the Organization provided time records and employee statements showing past performance of roofing work. Form 1 Award No. 40317
The Carrier responded that there was no violation of the Agreement. It argued that the project was not maintenance and repair, but rather a complete roof tear down of a significantly large magnitude and that contractors have been utilized for this type of work in the past. The Carrier further advised that the warranty required installation by the contractor. In addition, it argued that the roof was leaking and that its BMWE forces were not available to perform this work within the time constraints required.
The Board carefully reviewed the lengthy record. At the outset, the Board finds that the alleged notice violation asserted in Paragraph 2 of the Statement of Claim represents a different issue from that handled on the property. Both parties acknowledged during the handling of the case that the Carrier provided advance notice of its intent to contract out the work and met with the Organization in conference to discuss the issue. It is well-established that when there is a material variance between the issues raised by the parties on the property and those advanced to the Board, the faulty aspect of the claim must be dismissed. See, Third Division Award 37998. Accordingly, the alleged notice violation is not properly before the Board and must be dismissed.
With regard to the remaining issues, we conclude that the Organization did not provide sufficient evidence to meet its burden of proving that the Carrier was in violation of the Agreement. The Organization's evidence consisted of employee statements as well as time records. The Carrier responded that the evidence proffered by the Organization did not establish that covered employees have historically, traditionally, and customarily performed the work at issue. We agree with the Carrier, particularly in light of the evidence demonstrating that such work has also been performed on a consistent and regular basis by contractors.
The Organization failed to demonstrate the regularity, consistency, and predominance of past performance that is necessary to establish scope coverage. The claim must be denied. Form 1 Award No. 40317
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.