THIRD DIVISION
Award No. 44508
Docket No. 45977 21-3-NRAB-00003-200514
The Third Division consisted of the regular members and in addition Referee Barbara C. Deinhardt when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(National Railroad Passenger Corporation (AMTRAK) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it allowed outside forces (Metropolitan Contract Carpet, Inc.) to perform Maintenance of Way work (remove and install carpet tiles) on February 19, 20 and 21, 2019 in the Acela Lounge at Amtrak’s 30th Street Station in Philadelphia, Pennsylvania (System File BMWE-154855-TC AMT).
The Agreement was further violated when the Carrier failed to comply with advance notification and conference provisions in connection with the Carrier’s intent to contract out the subject work.
As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants D. Kaercher, D. Williams and J. O’Neill shall be compensated seventy-two (72) hours, to be divided equally amongst Claimants at their pro rata rates of pay.”
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.
On September 14, 2018, renovation work was performed in the Acela lounge at Philadelphia’s 30th Street Station that involved the installation of carpet tiles. On May 9, 2018, the Carrier had sent the Organization a contracting out notice and a conference was held on June 8, 2018. After the carpet was installed, the Carrier determined that it did not meet specifications and the carpet contractor agreed to replace the tiles at no cost to Amtrak. This work was done on the weekend of February 19-21, 2019.
The Organization argues that the Carrier was not in good faith when it sent the notice and met with the Organization. It had no intention of reaching an agreement. The work in question was a separate transaction and not covered by the May 9, 2018 notice. Carpet installation has historically, though not exclusively, performed by BMWE. Exclusivity is not necessary.
The Carrier argues that it complied with the terms of the Agreement when it sent a courtesy notice to the General Chairman and held a conference to discuss the contracting out. There was no need to send an additional letter before having the warranty work performed. Further, the work of carpet installation has not been done in the past by Organization employees. The subject work was done by the contractor at no cost to Amtrak pursuant to a contractor warranty and the carpet had a unique pattern that required carpet installation experts to install.
Upon a review of the record, the Board finds as follows. In the case involving the original installation of the carpet (Award 44511), we found that the Carrier violated the Agreement when it contracted out the work. We reiterate the findings made in that case. Based on those findings, we find that the Carrier violated the Agreement when it had the contractor remove the faulty carpet and install new carpet rather than assigning the work to the BWME members. The fact that the Carrier may have an action against the contractor under the carpet product warranty for any
costs the Carrier incurred (including the Carrier’s installation costs) because of the contractor’s failure to deliver the correct carpet does not supersede the Scope Rule.
We therefore conclude that the Claim should be sustained. There were three outside contractor employees who worked eight hours on three separate days, for a total of 72 hours. However, we find that precedent supports the Carrier position that the appropriate remedy is to pay the hours lost at straight time, rather than at the penalty overtime rate. Thus the appropriate remedy is to pay 72 hours at straight time to the Claimants in equal shares.
Claim sustained in accordance with the Findings.
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 29th day of July 2021.