PUBLIC LAW BOARD N0 2960 AWARD N0 64
PARTIES TO THE DISPUTE
Brotherhood of Maintenance of Way Employes and
Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when outside forces were used
to remove cross ties and do work for drainage at Madison, Illinois
on September 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, and 26, 1981.
(Organization File 3T-2674; Carrier File 81-1-294)
(2) The Agreement was further violated when the Carrier did not
-- give the General Chairman prior written notification of its plans
to assign said work to outside forces.
(3) Because of (1) and/or (2) above, Machine Operator R. Rhodes
shall be allowed eight (8) hours straight time for each of the
aforestated dates (total 80 hours) with the exception of September
26, 1981, which is compensable at the overtime rate for four (4)
hours.
OPINION OF THE BOARD:
This Board, upon the-whole record and-all of the evidence, finds and
holds that the ~:mploye and the Carrier involved in this dispute are
respectively Employe and Carrier within the meaning of the Railway Labor
Act, as amended, and that the Board has jurisdiction over the dispute
involved herein.
On the property and at the Board, the Organization claimed that the
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work in question properly fell under their scope rule and was improperly
subcontracted. The improper subcontracting was the result of failure to
give notice of the contracting out and due to their belief that none of
the criteria listed in the scope rule, under which contracting is allowed,
applied. The pertinent portion of Rule 1 - Scope states:
"By agreement between the Company and General Chairman,
work as described in-the preceding paragraph which is customarily
- performed by employes described herein, may be let to contractors
and be performed by contractor's forces. However, such work may
only be contracted provided that special skills not possessed by
the Company's employes, special equipment not owned by the Company,
or special material available only when applied or installed through
supplier, are required; or unless work is such that the Company is
not adequately equipped to handled (sic) the work; or, time
requirements must be met which are beyond the capabilities of
Company forces to meet.
"In the event the Company plans to contract out work because
of one of the criteria described herein, it shall notify the
General Chairman of the Brotherhood in writing as far in advance
of the date of the contracting transaction as is practicable and in
- any event not less that (sic) fifteen (15) days prior thereto,
except in 'emergency time requirements' cases. If the General
Chairman, or his representative, requests a meeting to discuss
matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with him
for that purpose. The Company and the Brotherhood representatives
° shall make a good faith attempt to reach an understanding concerning
said contracting, but if no understanding is reached, the Company
may nevertheless proceed with said contracting and the Brotherhood
may file and progress claims in connection therewith.
"Nothing herein contained shall be construed as restricting
the right of the Company to have work customarily performed by
employes included within the scope of this Agreement performed
., by contract in emergencies that effect (sic) the movement of traffic
when additional force or equipment is required to clear up such
emergency condition in the shortest time possible."
On the property the Carrier contended, that (1) the Claimant was employed
during the time the contractor was on the property; (2) that the Carrier's
equipment was not sufficient to handle the project within the time
constraints; and (3) due to the emergency nature'of the safety hazard
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involved, it-was necessary to utilize a contractor to correct it.
The Board, based on this record, is not convinced that any emergency
condition existed sufficient enough to justify the Carrier's clear failure
to. give notice of the contracting involved. As such a clear violation of
Rule 1 is established, it is not necessary to discuss or consider the
contentions regarding equipment and general time constraints. As was
stated in Award 16 of Public Law Board 1844:
"Assertions of emergency are not persuasive on this record.
There is no question that Carrier thus violated Rule 1 when
it failed to notify the General Chairman of its plans to
contract out the work. Having made this finding there is no
need to look behind the conflicting arguments relative to the
availability of equipment. These are matters which the parties
might have discussed under the procedures provided in Rule 1
for notice and consultation but they have no bearing on whether
the notice should have been given in the first instance."
The Carrier at the Board, however, directed all of their attention to
the question whether the Claimant is the proper claimant. They suggest he
lost no work opportunities as a result of the contractor being assigned to
the work in question because he actually was assigned to work with the
contractor. They suggest someone else may have been damaged, but not the
Claimant. '
While the Carrier did contend on the property that the Claimant was
employed, they did not specifically contend he lost no.work opportunity
because he was employed with the contractor. Thus, their sole defense
before the Board is raised for the first time and we are without
jurisdiction to consider it. Thus, in the arsence of any material defense
on the contention that the Claimant lost work opportunities, we must
conclude, based on these unique circumstances, there was a loss of work
opportunities. In this connection attention should be directed again to
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Award 16 of PLB 1844. Therefore, solely based on the foregoing, the Claim
will be sustained but only at the pro rata rate of pay.
AWARD:
The Claim is sustained to the extent indicated in the Opinion. The
Carrier is ordered to comply within thirty (30) days.
Vernon, airman
b
H. . Harper,`Mpye Tem~ aw or , a ier em er
'Dated: