NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(1) The Agreement was violated when the Carrier assigned outside forces (Krause Welding Repair) to perform Maintenance of Way and Structures Department work (operate end loader and dump truck) in connection with removing waste accumulated by a yard cleaner in the Clinton Yards on October Z and 9, 2003 (System File 3SW-2071TI1385916 CNW).
(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with an advance written notice of its intent to contract out the above-referenced work or make a goodfaith attempt to reach an understanding concerning such contracting as required by Rule 1(b).
(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants J. Sawvell, W. Braden and E. Imel shall now each be compensated at their respective rates of pay for an equal proportionate share of the fifty-two and one-half (52.5) man-hours expended by the outside forces in the performance of the aforesaid work." Form I Award No. 40377
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.
Claimants J. R. Sawvell, W. C. Braden and E. S. Imel established and hold seniority in the Track Subdepartment. On the dates involved in this dispute the Claimants were assigned to various positions in the vicinity of Clinton, Iowa, under the supervision of Manager of Track Maintenance Lubbs.
The Carrier operated a yard cleaner in the Clinton, Iowa, Yard. Accumulated waste was unloaded into the yard for later removal. On October 2 and 9, 2003, allegedly without notice to the General Chairman, the Carrier assigned outside forces (Krause Welding Repair) to load and haul off the waste. On October 2, 2003, five of the contractor's employees used an end loader and five dump trucks to load and haul yard waste from Clinton Yard. The five employees expended a total of 30 hours performing the work. On October 9, 2003, the contractor returned to Clinton Yard and, using an end loader along with two dump trucks, expended another 22.5 hours loading and hauling yard waste.
The Organization claims that the Carrier did not provide proper notice to the Organization as required by the Agreement. Second, the Organization claims that it was improper for the Carrier to contract out the above-mentioned work that is reserved to BMWE-represented employees.
According to the Organization, the Carrier had customarily assigned work of this nature to its Maintenance of Way forces. It further claims that this work is covered by the Scope Rule. According to the Organization, Carrier forces were fully qualified and capable of performing the designated work. The Organization argues Form 1 Award No. 40377
that because the Claimants were denied the opportunity to perform the relevant work, the Claimants should be compensated for the lost work opportunity.
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. First, it contends that the claim was not filed in a timely manner. The Organization filed its initial claim on November 12, contending that the work had been performed on September 2 and 3, 2003: It was not until December 12 that the Organization attempted to correct its error. This was beyond the 60-day time period allotted in the Agreement. Thus, the claim is untimely. Further, the Carrier contends that the contracted work does not belong to BMWE-represented employees under either the express language of the Scope Rule or any binding past practice. Therefore, notice was not required. According to the Carrier, controlling precedent has upheld the Carrier's position.
We first find that the claim was timely filed. The Organization filed its claim in November, incorrectly alleging violation dates as having occurred in September instead of October. However, the following month, the Organization attempted to correct its error. The Carrier did not raise this alleged time limit violation until January 6, 2004. It is evident that the Organization clearly attempted to file the instant claim in a timely manner and the error and subsequent correction will not defeat this daim- See Third Division Award 115?0.
As a remedy, due to lost work opportunities, the Claimants shall be made whole for the actual number of hours of contractor-performed work at the Claimants' respective rates of pay.
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.