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.
perform work at various locations on the Carrier's right-of-way involving grading, sloping, and ditching. The facts indicate that the Carrier served the Organization a notice on March 2, 2007, in Service Order No. 36327 advising of its intent to contract out the work of ". . . providing all supervision, labor and equipment necessary for the operation of a ditch cleaner to perform grading and sloping of drainage area near track structures on an `as needed' basis." On March 6, 2007, the Organization requested a meeting to conference the notice. It asserted that the notice was inadequate because it failed to offer enough specific information to form the basis for a meaningful conference. According to the Carrier, a good faith conference was held on March 14, 2007, with neither side conceding to the other, after which the Carrier confirmed in a letter of the same date that it would contract out the disputed work.
It is the position of the Organization that the Carrier improperly used outside forces to perform scope-covered work. It asserted that Rule 7(H) of the Agreement lists various Carrier owned and/or leased machines under the Common Machine Classification many of which could have been used to do the disputed ditching work assigned to Herzog, all of which could have been operated by the Claimant. It further argued that Carrier forces have regularly performed similar projects as part of their normal duties on many occasions and the work is protected by its Form 1 Award No. 40922
specific Scope Rule. It concluded by requesting that the claim be sustained either procedurally or on the merits as presented.
It is the Carrier's position that after serving and conferencing a proper notice it contracted with Herzog to provide specialized equipment to perform ditching work. According to the Carrier, the equipment is a specially designed digging machine that has open well cars and moves along the outer rails of those cars and the machine is not similar to equipment the Carrier owns and, given its specialized nature, Herzog requires its employees who possess knowledge of the machine to operate it. The Carrier also stated that its forces could not complete the work within the required time period. It further argued there is a mixed practice on the property of contractors and covered employees performing the disputed work and the Scope Rule is general in nature. Lastly, it asserted the Claimant was fully compensated and worked all assigned hours operating a Little Giant Crane on the dates listed in the claim; thus he was not available to perform the disputed work. It closed by stating that the Organization did not present anything to show that it did not properly contract for the use of specialized equipment that it did not own or have readily available and because of that it requested that the claim remain denied.
The parties mutually relied upon Rule 1(B) of the Agreement as supporting their respective positions. It reads, in relevant part, as follows:
The Carrier argued that the Organization cannot prove "exclusivity" to the work in dispute, however, that argument is not applicable in this instance because the Organization is not required to prove exclusive reservation of scope-covered work when the dispute involves the assignment of work to outside contractors. The proper application of the exclusivity test is to those internal disputes over the assignment of work between different classes and crafts of the Carrier's own workforce and not to disputes involving outside forces. In Public Law Board No. 7096, Award I involving the same parties to this dispute it was ruled without dissent as follows:
As stated above the question at issue is not one of "exclusivity," but whether or not the Carrier demonstrated its ability to meet one or more of the exceptions contained in Rule 1(B). The Carrier suggested it met several of those exceptions.
employees and that specialized equipment and special skills to operate the machine were needed. It is undisputed that the Carrier did not own a specialized digger that has open well cars and moves along the outer rails of those cars. It was not rebutted that Carrier employees did not have the necessary special skills to operate the machine nor was there any evidence offered that such a machine; could be leased or had ever been leased and/or operated by Carrier forces. Rule 1(B) recognizes the use of specialized equipment coupled with special skills as one of the exceptions for contracting out work with the proviso that the equipment was required and/or time requirements had to be met which could not be met by the Carrier's employees. The Organization did not effectively rebut the Carrier's argument that the special equipment used hastened completion of the projects or that it could have been accomplished as expeditiously with other equipment. Therefore, the Board finds and holds that the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimants) not be made.