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.
The Organization states that the customary practice is to assign Carrier forces to perform routine track maintenance such as panel installation using Carrier equipment or similar equipment obtained by rental or lease arrangement. Although available and fully qualified for this work, the Claimants suffered a loss of work opportunity when the Carrier contracted with outside forces.
This work is customarily and historically performed by the Carrier's forces pursuant to Rule 1 - Scope, Rule 2 - Seniority Rights and Sub-Department Limits, Rule 5 - Seniority Rosters and Rule 55 - Classification of Work, which is covered by the scope of this Agreement reserving this work to BMWE-represented employees. The exclusivity test is not applicable in contracting disputes. Form 1 Award No. 40678
The notice of June 8, 2005, is flawed because it failed to identify the most basic information - equipment - that the Carrier intends to lease. With or without proper notice, the Carrier has the burden of proving that the exceptions in the Note to Rule 55 apply. The Carrier did not deny that the work was performed on the dates in question by outside forces. Contractor employees used no special skills and only ordinary tools and/or equipment. The Carrier made no attempt to rent or lease equipment for use by Carrier forces.
The Organization further argues that the Carrier's defenses are without merit. No emergency existed because there is no reasonable connection between the snowfall on May 11 and the two derailments on the Orin Subdivision Main Line track on May 14 and 15, 2005. The work at issue was performed by contractors more than three months after May 2005. The conditions were not sudden occurrences, unforeseen by the Carrier, given its deferred track maintenance creating unstable conditions on America's highest density coal lines. The Carrier's negligent lack of managerial foresight in deferring maintenance caused the challenges faced by the Carrier. Malfeasance by the Carrier is not a justification for contracting.
The Claimants are entitled to receive compensation even if fully employed on the dates in the claim. Third Division Awards 19898, 20042, 20412, 20633, 21340 and 21808 establish that full employment by the Claimants is not a deterrent to an award of damages. The claim should be sustained.
According to the Carrier, the claim must be denied. It provided proper advance notice on June 7, 2005: Form 1 Award No. 40678
with coal dust and other waste debris to pose perilous conditions by inhibiting the ability of the ballast to drain properly. Complications arose with two derailments in May 2005 that impeded the movement of coal between coal facilities and electrical plants.
This extreme moisture, combined with coal dust and waste debris, caused subgrade degradation/instability which required replacement of switches, ballast, rail and crossovers. This expanded and unexpected maintenance caused a spike in work not contemplated by the Agreement. During these derailments and wet conditions, the Carrier called "all hands on deck" which provided full employment for Carrier forces. The Claimants were fully employed and working overtime on the dates in the claim; they were not available and could not have performed additional duties. Their monetary claims are excessive.
The work is not reserved to the Organization because Rule 1 is a general Scope Rule and Rule 55 is a work classification and not a work reservation Rule. The Carrier does not own side booms and does not have qualified operators for such equipment. Heavy trucks to haul equipment could not be rented without using the contractor's drivers. This is a piecemeal claim for very little of the work. On-property Awards support the Carrier's view that it is not required to piecemeal a project which would be impractical and or inefficient.
The Board finds that the contractor used side boom Caterpillars, front end loaders, track-type excavators and earth scrapers, which are Group 2 machines in the Roadway Equipment Sub-department, as well as similar or identical equipment currently in the Carrier's roadway equipment inventory. The 45 pictures and the 59 vacancy bulletins in the record confirm that this type of equipment is owned by the Carrier and has been operated by Carrier forces. Statements submitted by 11 employees further attest to their operation of equipment similar or identical to the equipment used by outside forces. Based on that evidence, the work in this claim has been customarily and historically performed by BMWE-represented employees. As for the weather, it was a complicating factor but did not rise to an "emergency" situation.
Nevertheless, the Organization did not establish that the Carrier violated the notice to contract. Two notices issued - June 7 and 8 - are sufficient in form and content. The Carrier's forces were fully employed and all Claimants were working overtime during the dates in the claim. The Carrier did not have a sufficient quantity Form 1 Award No. 40678
of heavy trucks to haul the track material; contractors haul their own equipment with their trucks. The Carrier has three heavy truck positions on Seniority District 400 and all were fully employed on the claim dates; this equipment was not available. Carrier forces performed track work; however, the present undertakings were not contemplated by the Agreement and were beyond the capacity of the Carrier's forces. The Note to Rule 55 allows the Carrier to contract in this situation.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.