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:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier utilized outside
forces (DeAngelo Brothers) to perform Maintenance of Way
and Structures Department work (cut brush and trees on the
right of way and crossing clearing) at grade crossing on the
Adams Subdivision beginning on June 26, 2007 and continuing
(System File B-07010-106/1485502 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 good-faith 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 D. Jewson, R. Otto, R. Kuhl and R.
Schuett shall now each be compensated at their respective
straight time rates of pay for an equal and proportionate share
of the total time man-hours expended by the outside forces in
the performance of the aforesaid work on the Adams
Subdivison beginning June 26, 2007 and continuing."
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.
Parties to said dispute were given due notice of hearing thereon.
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:
"Employes included within the scope of this Agreement in the
Maintenance of Way and Structures Department shall perform all
work in connection with the construction, maintenance, repair and
dismantling of tracks, structures and other facilities used in the
operation of the Company in the performance of common carrier
service on the operating property. This paragraph does not pertain
to the abandonment of lines authorized by the Interstate Commerce
Commission.
By agreement between the Company and the General Chairman,
work as described in the preceding paragraph which is customarily
performed by employes described herein, may be let to contractors
and be performed by contractor's forces. However, such work may
only be contracted provided that special skills not possessed by the
Company's employes, special equipment not owned by the
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
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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.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 15th day of December 2010.