Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42576 Docket No. MW-42301 17-3-NRAB-00003-130300

The Third Division consisted of the regular members and in addition Referee Robert A. Grey when award was rendered.

(Brotherhood of Maintenance Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company [former Southern ( Pacific Transportation Company (Western Lines)]

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Harco Trucking) to perform Maintenance of Way work (haul Maintenance of Way work equipment) from Sparks, Nevada to Winnemucca, Nevada on March 20, 2012 (System File RC-1259S453/1569866 SPW).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman a proper advance notice of its intent to contract out said work and when it failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces as required by Rule 59 and the December 11, 1981 National Letter of Agreement.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimant K. Leighton shall now be compensated for eight (8) hours at his respective straight time rate of pay."

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.

The record reflects that the contracted-out work which is the subject of this dispute is work performed by members of the Organization pursuant to the Agreement. It is therefore scope-covered work for which advance contracting-out notice must be provided, even if it is work not performed exclusively by Organization members. See on-property Third Division Awards 18714, 28989, 29158, 36515, 39708 and 40932.

Awards on this property have ruled notice stating "as needed . . . at various locations in California and Nevada" to be sufficient, and notice stating "on an as needed basis" on a number of named subdivisions to be sufficient, for similar notice periods of time. See Third Division Awards 37852 and 40932, respectively.

However, the Board finds that the notice of intent to contract out work in the instant case, which states "various points across the Union Pacific system," is overly broad, and therefore insufficient.

The Carrier is required to provide sufficient notice prior to contracting out scope-covered work, regardless of mixed practice. See on-property Third Division Award 37720. Therefore, the Board does not reach the Carrier's mixed practice argument; nor the Organization's argument that the Carrier did not raise mixed practice during the on-property handling of this dispute; nor the parties' other arguments.

None of the above-cited on-property Awards are palpably erroneous. The Board notes that neither party dissented from any of them. Nothing in the record provides a basis for deviating from the on-property precedent established by these Awards. They will therefore be followed in the interest of stability.

The Claimant has established and holds seniority as a truck driver in the Track Sub-department and was regularly assigned to this position working various schedules, performing the work that is the subject of this dispute on a regular basis as part of his regular assignment.

The Board has carefully reviewed the on-property Awards regarding the Board's authority, or lack thereof, to impose monetary remedies for contracting-out violations. The Board is persuaded by the more recent line of on-property Awards in which the Board did impose monetary remedies for lost work opportunities. See Third Division Awards 36829, 36964, 40372 and 40932.

The Board thus finds that a monetary remedy is appropriate for the lost work opportunity in the instant claim. However, in light of the Carrier's unrefuted evidence that the work involved took two-and-one-half hours rather than the Organization's claimed eight hours, the Claimant is awarded two-and-one-half hours at his respective straight time rate of pay.

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 19th day of April 2017.