The Third Division consisted of the regular members and in addition Referee Daniel F. Brent 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.
The instant case involves the Carrier's use of a sub-contractor to operate a special concrete car with pressurized concrete to perform tunnel reinforcement work. The Organization contends that the Carrier violated the Agreement by assigning outside forces employed by Osmose Company to perform Maintenance of Way and Structures Department work, more particularly tunnel repair and reinforcement and related work in Tunnel No. 1 in the vicinity of Mile Post 97 near Guernsey, Wyoming, beginning on March 1 and continuing through April 30, 2004. According to the Organization, the Carrier's notice regarding sub-contracting was defective.
The Organization contends that 11 employees of the outside contractor, Osmose Company, performed bargaining unit work for at least ten hours per day, five days per week from March I through and including April 30, 2004. According to the Organization, the Bridge and Building Sub-Department had historically participated in performing just this type of work. The Organization cited the Note to Rule 55 and the Amendments thereto embodied in the December 11, 1981 Letter of Understanding (Appendix Y). Form 1 Award No. 40547
The Carrier contends there has been an historical practice of using outside forces and that it did not have the skilled forces or special equipment necessary to perform this tunnel repair work.
The Carrier asserted persuasively in this case that a special concrete car handling pressurized concrete is required for this job. However, the Carrier was months late in explaining the special nature of this work. Moreover, the notice to the Organization inaccurately cited the type of special equipment necessary to perform this tunnel reinforcement project. If the Carrier's notice to the Organization had correctly cited the special equipment and had been submitted to the Organization at least 15 days before the subcontracting commenced, the Carrier would have had a valid explanation and been entitled to subcontract out the work.
However, because of the failure to provide accurate information in a timely manner so that the Organization could properly intervene on behalf of the bargaining unit, the Carrier's action constituted a violation of the Agreement.
The issue of remedy is problematic, because the employees whom the Organization asserts should have been awarded the work were not "tunnel qualified" according to the evidentiary record. Therefore, no monetary award is applicable in the instant case, because the record does not clearly demonstrate that the Claimants would have performed the work if the Organization had successfully intervened on their behalf. Form 1 Award No. 40547
The Carrier violated the Agreement by failing to provide timely notice of its decision to contract out the disputed work and to discuss the decision with the General Chairman. The Carrier shall comply with the applicable mandated time frames for announcing proposed contracting out and for meeting with the Organization to discuss such contracting.
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.