Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40819
Docket No. MW-40825
10-3-NRAB-00003-090085

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.

(Brotherhood of Maintenance of Way Employes Division -
( HIT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Chicago &
( North Western Transportation Company)

STATEMENT OF CLAIM:





Form 1 Award No. 40819
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FINDINGS:

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.




Although the Carrier questioned the number of hours expended by the contractor and whether the disputed work was covered by the Scope Rule, it did not effectively refute any of the allegations of the claim. Therefore, all of the assertions in the claim that were not refuted are accepted as proven fact for purposes of resolving the dispute.


Turning to the merits, it is clear that Scope Rule 1(B) forms the core of the dispute. It reads, in pertinent part, as follows:



Form 1 Award No. 40819
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Company, or special material available only when applied or
installed through supplier, are required; or unless work is such that
the Company is not adequately equipped to handle the work; or,
time requirements must be met which are beyond the capabilities of
Company forces to meet.
In the event the Company plans to contract out work because of one
of the criteria described herein, it shall notify the General Chairman
of the Brotherhood in writing as far in advance of the date of the
contracting transaction as is practicable and in any event not less
than fifteen (15) days prior thereto, except in `emergency time
requirements' cases. If the General Chairman, or his
representative, requests a meeting to discuss matters relating to the
said contracting transaction, the designated representative of the
Company shall promptly meet with him for that purpose. The
Company and the Brotherhood representatives shall make a good
faith attempt to reach an understanding concerning said
contracting, but if no understanding is reached, the Company may
nevertheless proceed with said contracting and the Brotherhood
may file and progress claims in connection therewith." (Emphasis
added)

We note that Scope Rule 1(B) uses the word "shall" in connection with the performance of all maintenance work. As traditionally interpreted, the word "shall" imposes a mandatory obligation. Moreover, Scope Rule 1(B) as written, has been construed to be a reservation of work Rule. See Award 16 of Public Law Board No. 1844 between these same parties.


It is clear that the work in question was routine maintenance work within the meaning of Scope Rule 1(B). Therefore, the Carrier was required to provide notice of its intention to contract out the work. The Carrier did not provide any notice whatsoever. Thus, the Carrier's action constituted a double violation of the Agreement, i.e., it impermissibly contracted out reserved work and it did not provide the required advance notice of its intentions.


We turn, then, to consideration of the remedy question. Although the Carrier asserted a full-employment defense, it did so on the basis of three prior Awards that involve a different Rule and a different Agreement. If full-employment was allowed

Form 1 Award No. 40819
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to serve as a defense to a monetary remedy, the defense would effectively allow the Carrier to violate the Agreement with impunity. Thus, the asserted defense is not persuasive here.


On the record before the Board, we find the Carrier's violations did create a loss of work opportunity. Accordingly, the Claimants are entitled to the remedy requested for all hours worked by the contractor for the two specific dates identified in the record, i.e., June 26 and 27, 2007.








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.



                      By Order of Third Division


Dated at Chicago, Illinois, this 15th day of December 2010.