Upon the whole record, after hearing, this Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
By notice dated June 22, 1992, Carrier advised the Organization of its intent to solicit bids "to cover the installation of asphalt at the store area facility in the Hinkle Yard on the Portland Subdivision." It noted that two -
On September 18, 1992 Carrier served the following notice to the Organization:
The Organization again objected to the contracting, noting that this was the first time notice was given concerning contracting fencing at Hinkle Yard and that it cannot be considered to be part of the prior notice concerning asphalt at that location. The Organization requested a conference on this notice. Carrier responded on October 2, 1992 indicating a willingness to meet, and conference was held on October 8, 1992 without resolution. The disputed work took place between September 14 and 25, 1992.
In its claim filed on October 20, 1992, the Organization asserts that the work in question is specifically reserved to employees by Rules 1, 8, 9 13 and 16 of the Agreement, and has customarily and historically been performed by them. It also notes that the contracting took place before the notice was served and conference held. In its correspondence on the property, the Organization took issue with the type of past practice evidence introduced by Carrier, and again argued that Carrier failed to meet its good faith notice and conference obligations. It asserts that ~ full monetary remedy is appropriate for loss of work opportunity regardless of whether Claimants were fully employed.
Carrier argued throughout that the Scope rule was general in nature and did not specifically reserve this type of work to employees under the Agreement. It contends that it has established a well-known and documented past practice of contracting similar type of work, and relies upon the "prior existing rights" language in Rule 52(b) as well as prior precedent on the property to justify its contracting, citing Third Division Awards 29393, 28558, 28789. Carrier contends that the claim is excessive, and argues that Claimants' suffered no loss as a result of the contracting since Claimant Hector was on vacation on September 14, 1992, Claimant
Perrenoud was on vacation on September 24, 1992 and the other claimants were fully employed during the entire claim period. Finally, Carrier asserts that it fulfilled its notice and conference obligations under Rule 52.
The decisions concerning Carrier's ability to contract out various types of work on this property are abundant, and Carrier relies specifically on Third Division Awards 31649, 31227, 31034, 30210, 30202, 30201, 30167, 30163, 30008, 30007, 30004, 29916, 28789, 23892, 32860, 32350, 3D469,-30221, 30219, 30165, 29393 in arguing that it has established a past practice of contracting work involving chain link and regular fencing.
the practice established on construction work, there is no
not satisfy its Rule 52(a) notice do not believe that Carrier's amend the prior June 22, 1992 was proper. The correspondence
the property for contracting out fence basis for determining that these Awards are interests of stability, we shall follow their has established the existence of a mixed respect to the work in question.
and conference obligations in this case. We September 18, 1992 notice attempting to notice on asphalt to include fencing work and conference held on July 6, 1992 dealt
with Carrier's attempt to contract asphalting work and there was no reason for the Organization to know to- include the subject matter of fencing in that conference. Thus, the September 18, 1992 notice was the first opportunity the Organization had to protest Carrier's intent to contract fencing, and it did so promptly, resulting in a conference held on October 6, 1992. The record reflects that the contracting in issue commenced on September 14, 1992, even prior to the attempt to amend the prior notice, i0LB PL, ~ (tear . Awl ten. I~
and ended on September 25, 1992, prior to the conference held to discuss the matter. Accordingly, we conclude that Carrier violated Rule 52(a) by failing to meet both its obligation to serve notice at least 15 days, and engage in a good faith discussion, ri r the contracting. Third Division Awards 31652, 31284, 31287.
With respect to the appropriate remedy for a violation of Rule 52 based solely upon Carrier's notice violation occurring after 1991, we adopt the rationale contained in Case Nos. 6 and 8 that such situation represents a loss of work opportunity, and award monetary damages to Claimants even if they were fully employed. Since Carrier did not dispute the fact that the contractor's employees worked a total of 320 hours on the claim dates performing the work in issue, or show that the disputed work or the work being performed by Claimants was of an emergency nature and could not have been assigned or scheduled at another time, we will sustain the claim.