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 proceeding addresses two claims, each of which is dated June 8, 2007. The claims were handled in the usual manner during on-property exchanges up to and including the highest designated officer of the Carrier. Both claims involve the same contractor, the same project at the same location and similar, if not identical, issues and arguments; the claims were consolidated for the purpose of Board adjudication.
The consolidated claim involves the Carrier's use of outside forces to remove brush and perform grading for the construction of a new siding between Mile Posts 629 and 632 at New Milford, Pennsylvania, beginning on April 9 and continuing through May 30, 2007. The Organization alleges that the Carrier violated Rule I (Preamble) Rule 3 (Vacancies and New Positions) Rule 4 (Seniority) Rule lI (Overtime) Rule 28 (Rates of Pay) and Appendix H. Form 1 Page 3
By letter dated February 21, 2007, the Organization requested a conference and lodged its objection to the Carrier's decision to contract out the work itemized in the notice. During the conference, which was held on March 22, 2007, the Organization requested that the Carrier increase its use of BMWE-represented employees on this project and provide copies of contracts for the claimed work. The Carrier disagreed with the requests based on the contention it did not have qualified employees or equipment available to perform the claimed work.
There is no dispute that the claimed work is scope-covered under Rule I and has been historically, traditionally, and customarily performed by BMWErepresented employees. There is, also, no dispute that the notice was timely.
According to the Organization, the absence or lack of wording in the notice that the contracted-out work included brush removal demonstrates that the notice does not fully encompass the claimed work. By contracting out the claimed work without providing notice to the Organization and affording it an opportunity to request a conference and engage in good-faith discussions, the Organization asserts that the Carrier violated Rule I and Appendix H, as well as other Agreement Rules. Also, it contends that the Carrier's assertion that brush removal is part of grade work constitutes "new" argument.
The Carrier contends that brush removal is part of grading work and such work is itemized in the timely notice. Rule I does not require that every level of detail be itemized in a notice. In the Carrier's view, support for its argument regarding brush removal is set forth in on-property Third Division Award 37499 wherein planting and seeding of wetland areas was an integral part of the contracted-out grading. Form I Award No. 41445
In reviewing the record evidence established by the parties, the Board finds that brush removal was _not itemized in the notice of intent to contract out, nor was it discussed during on-property exchanges. The Carrier's argument that brush removal is part of grading work is new argument first presented at the Board level. Consequently, that argument cannot be considered pursuant to the rules for this appellate proceeding.
The Board recognizes that Rule 1 neither describes nor itemizes the level of detail required for a contracting notice. Nevertheless, the notice must be sufficient in clarity and purpose about the work subject to contracting out for the Organization to determine whether to request a conference.
Conference is the forum for disclosure and discussion of work encompassed by the notice. Although the Organization and the Carrier are mutually responsible for good-faith efforts during conference discussions, as the custodian of records in the normal course of its business operations, the Carrier is inherently familiar with the plans and details underlying each notice such that only it knows the integral and selfevident work to disclose for discussion. The record does not contain evidence pertaining to discussion during conference or on-property exchanges relative to brush removal in the context of grading work.
Based on the foregoing, the Board concludes that the notice does not address brush removal. Thus, the Carrier failed to comply with Rule I and Appendix H when it contracted-out brush removal work.
Accordingly, that aspect of the claim pertaining to brush removal is sustained and the remedy is granted. The Carrier's violation of the Agreement caused the Claimants to incur a loss of work opportunities. Numerous Third Division Awards support the Organization's requested remedy. (See, Third Division Awards 2701, 31386, 32861 and 39490.)
As noted in Public Law Board No. 6493, Award 24, the Claimants may have been fully employed on the claimed dates, but full employment does not preclude monetary relief as it serves to reinforce contractual obligations for the notice, conference and good-faith discussion requirements in Rule I and Appendix H. Without a challenge by the Carrier, the hours sought for each claim date are presumed accurate and will be granted as remedial relief. Form 1 Page 5
As for that part of the claim focusing on grading work, the Board finds that the Carrier complied with Rule 1 and Appendix H. There was timely notice informing the Organization that scope-covered work would be subject to contracting out. Following exhaustion of good-faith attempts during conference discussions addressing grading work, the claim remained outstanding. Rule 1.4 provides for the Carrier to proceed with contracting in this situation. Accordingly, that aspect of the claim pertaining to grading work is denied.
