The Third Division consisted of the regular members and in addition Referee Patrick Halter 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 September 1, 2004, the Carrier issued a letter of intent to contract to the Organization:
On September 3, 2004, the Organization requested a conference that occurred on October 7, 2004, with no resolution.
The Organization filed a claim on December 7, 2004, alleging violations of "Rules 1, 2, 5, 29, 55, the Note to Rule 55 and Appendix Y but not limited thereto" when the Carrier contracted for two on-track brush cutters. It contended the claimed work is customarily performed by BMWE-represented employees and falls within the scope of the Agreement. BMWE-represented employees have a contractual right to be assigned to and perform the work before the Carrier resorts to employ forces from outside the Agreement. In this regard, the Carrier is required to notify the General Chairman "in writing, as far in advance of the contemplated transaction as is practicable and, in any event, not less than fifteen (15) days prior thereto[.]"
On February 9, 2005, the Carrier denied the claim stating the Organization provided no evidence and the Carrier lacked the manpower and equipment to accomplish the work with its forces. Also, the Organization does not have the exclusive right to handle this work and its requested relief was excessive.
An appeal was filed on March 7, 2005. Therein, the Organization reiterated its arguments as set forth in the claim with citations to Awards and noted that a "letter of intent does not relieve the Carrier of the responsibility to make a good faith effort to discuss these contracting issues with . . . [BMWE]."
The Carrier denied the appeal on May 2, 2005. By letter dated March 24, the Organization confirmed the conference of March 15, 2006; another letter dated September 5, confirmed a second conference on May 24, 2006, at which time the Organization provided pictures of equipment the Carrier owns or can lease and a Track Inspector's statement.
Control of vegetation by mowing and brush cutting on and around the rightof-way is part of track maintenance. This work enhances visibility of and access to the track and right-of-way structures. BMWE-represented employees use on-track equipment, ordinary tools (mowers, weed eaters, chain saws) and off-track equipment (brush cutters, weed burners, tractor mowers) to clear and control vegetation. Employee statements, copies of bulletins and photographs of Carrierowned equipment constitute clear and convincing evidence that the Carrier's forces Form 1 Award No. 40670
customarily and historically perform this work and were available with the skills and qualifications to operate Carrier-owned equipment, as well as rental or leased equipment.
The Organization received proper notice from the Carrier, and the parties engaged in good faith discussions over the letter of intent. The organizational imperative to perform this maintenance work as scheduled is not apparent because no special skill or equipment was required and Carrier-owned equipment is routinely deployed for this work. There is no indication that rental or leased equipment was unavailable. The Carrier states its forces were fully employed. That statement is a tautology because the Claimants encumber full-time positions and, by definition, are always fully employed by the Carrier. Given these findings, the Board concludes that the reasons for contracting fall short of the Agreement and Appendix Y. Parts (1) and (2) of the Organization's claim are sustained.
The Carrier is aware that a decision to contract work which is customarily performed by Carrier forces may result in an award of compensation. The Claimants were subjected to a loss of work opportunity due to the Rules violations. Full employment or vacation during the claim period does not relieve the Carrier from compliance with the Agreement. Monetary relief is appropriate to preserve and protect the integrity of the Agreement and Appendix Y.
The parties disagree about the calculations and bases for the requested monetary relief. To resolve that disagreement, the claim is remanded to the parties for a determination of the amount of hours of contractor assigned work. In making that determination, the parties are to review the Daily Work Reports submitted by the contractor and, under Rule 5, to calculate relief as Group Three Operators and apportion it accordingly.
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.