Form 1 Award No. 41030The 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.
By notice dated January 31, 2008, referencing "Service Order No 39473," the Carrier advised the Organization as follows:
On November 19, 2009, the Carrier forwarded a copy of the contract with Becker Construction, noting "[a]s per the Organization's request, please find attached a copy of the contract that pertains to Service Order No. 39473." Form 1 Award No. 41030
The contract with Becker Construction provided by the Carrier ". . . is made and entered into as of JANUARY 31, 2008. . ." - the same date of the notice from the Carrier to the Organization stating the Carrier's intent to contract the work.
The Organization argues that by entering into the contract with Becker Construction on January 31, 2008, and sending notice to the Organization on that same date notifying the Organization that "[t]his is a 15-day notice of our intent to contract the following work. . . ," the Carrier violated the notice requirements of Rule 52. We agree.
This was not an "emergency time requirements" case. The work was performed in August 2008 - long after the January 31, 2008 notice and effective date of the contract with Becker Construction.
However, the Carrier entered into the contract with Becker Construction on January 31, 2008, and gave the Organization notice of its intent to contract the work on the very same date. But Rule 52(a) states, in pertinent part, that ". . . [i)n the event the Company plans to contract out work . . . it shall notify . . . the Organization . . . 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 . . . ." Entering into the contract with Becker Construction on January 31, 2008, and giving the Organization notice on the same date of ". . . a 15-day notice of our intent to contract the following work. . ." does not meet the clear requirement in Rule 52(a) obligating the Carrier to give the Organization at least 15 days' notice ". . . in advance of the date of the contracting transaction . . ." when it ". . . plans to contract out work." By giving the Organization notice of its intent to contract the work on the very same date it entered into the contract with Becker Construction, the notice requirements in Rule 52(a) have not been complied with.
In a series of recent Awards, the Board has reiterated the following principles in contracting cases: (1) exclusivity of performance of the disputed work by scope-covered Form I Award No. 41030
employees need not be shown and the Organization need only show that the disputed work falls under the scope of the Agreement (2) while a "mixed practice" of contracting out the disputed work may exist and the Carrier otherwise would have the right to contract the work, the failure of the Carrier to meet its notice obligations concerning contracting requires sustaining of claims where those notice obligations were not followed and (3) affected employees are entitled to make-whole relief for lost work opportunities even if they were working on the dates the contracted work was performed. See Third Division Awards 40763, 40857, 40858, 40859, and 40860 and Awards cited therein.
Those principles govern this case and the remedy. There is no dispute that scope-covered employees have performed the type of work involved in this case. The record shows that the Carrier did not meet its notice obligations under Rule 52. As a remedy, the affected employees shall be made whole for the lost work opportunities on the dates the work was performed by the contractor as set forth in the claim.
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.