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, 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.
On September 8, 2004, the Carrier notified the General Chairman of its intent to contract out ditch line work in order to maintain proper tunnel drainage at Mile Post 243.88 near Tunnel City, Wisconsin. The notice gave an approximate start date of September 27, 2004 and indicated that the work would be completed by October 8, 2004. The General Chairman promptly responded by fax dated September 9, 2004, requesting that the parties meet on September 13, 2004 to discuss the matter. The General Chairman also requested that ". . . said contracting should not begin prior to our discussions."
The Organization asserts that it expected the Carrier to postpone the proposed contracting until the parties could discuss the proposed contracting out. The parties met on October 8, 2004 and discussed the September 8, 2004 contracting out notice. According to the Organization, the Carrier did not advise at that meeting that the contracted work had already commenced and in fact was nearing completion while the conference was in progress.
The Organization contends that the contracted work comes within the Scope of the Agreement and that ditching work has historically, customarily, and traditionally been performed by BMWE forces. During the handling of this claim on the property, the Organization strongly argued that the Carrier failed to meet its contractual obligation to engage in good faith discussions when it utilized a contractor to perform scope-covered ditching work prior to the "pre-contracting" conference between the parties. Form 1 Award No. 40320
The Carrier asserts that it met its good faith obligations and gave proper advance notice prior to contracting out. The Carrier further states that the work in question is not exclusive to BMWE-represented forces. Moreover, the Carrier argues that it had valid reasons for contracting out, because it did not have the available equipment, employees, or expertise to accomplish the work.
Whether the Carrier had proper reasons for contracting out is a matter that should have been discussed with the General Chairman under the clear language of Rule 1 of the Agreement. The pertinent provision states:
Notwithstanding the Carrier's argument to the contrary, exclusivity is not the test in determining whether the notice and conferencing obligations of the Agreement must be satisfied. See, e.g. Third Division Awards 29979, 32861, and 35378. It is sufficient to show, as the Organization has in this case, that the work in Form 1 Award No. 40320
question has been performed by its members on a historical and customary basis. There is considerable evidence in the record to support that conclusion.
The Carrier failed to demonstrate that it complied with the foregoing contractual requirements in good faith. Holding a conference at the same time the contracted work is nearing completion renders the conference obligation meaningless. Such actions by the Carrier preclude any good faith attempt to reach an understanding concerning the contracting. Third Division Awards 30823, 30943 and 30970. Consistent with the numerous Awards on this subject which emphasize the seriousness of the breach of good faith obligations under the Agreement and the lost work opportunity of the affected employee(s) the Claimant is to be compensated at his straight time rate of pay for the hours indicated in the claim. See, e.g, Third Division Awards 38012, 38965 and 39883.
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 transntitted to the parties.