Claim of the System Committee of the Brotherhood that:
be compensated at their applicable rates of pay for an equal and proportionate share of the total straight time and overtime manhours expended by the outside forces in the performance of the aforesaid work beginning March 2, 2005 and continuing.
PLB 7096, Award 12
Hasler, etc.
Page 2
Because the Carrier failed to notify the Organization of its intent to contract the work in dispute as required by Rule 1(B), the conference procedure established by the Agreement was frustrated. See Award 1 of this Board (where the notice issued on the day the outside forces began working) quoting Third Division Award 32862:
(O)ur function is to enforce language negotiated by the parties. in Article IV and as a result of negotiations, the parties set forth a process of notification and conference in contracting disputes. The Carrier's failure to follow that negotiated procedure renders that negotiated language meaningless. This Board's function is to protect that negotiated process. Our discretion for fashioning remedies includes the ability to construct make whole relief. The covered employees as a whole are harmed when the Carrier takes action inconsistent with the obligations of the Agreement (here, notice) to contract work within the scope of the Agreement . ...
The same rationale applies here. The notice was given by the Carrier on the day the outside forces commenced work; the work under this claim was completed before the parties held a conference; and, as a re-
suit, the Organization was given no opportunity to use the conference established by Rule l(B) to attempt to reach an understanding with the Carrier to attempt to prevent the contracting of the work. If, as the Carrier argues, there were special circumstances concerning the work (e.g., equipment not possessed by the Carrier, special qualifications for use of certain chemicals, etc.) which would otherwise permit the Carrier to contract the work under Rule 1(B), those circumstances could have been discussed with the Organization in conference after timely notice. However, that process was not allowed to unfold because the Carrier failed to give timely notice as required by Rule 1(B).
The end result was that because of the Carrier's failure to give timely notice under Rule l(B) and the frustrating of the notice and conference provisions in that rule, Claimants lost overtime opportunities. With the frustrating of the notice and conference procedures resulting from the Carrier's failure to give timely notice, make whole relief for those lost work opportunities is therefore appropriate. Claimants shall be made whole for the lost work opportunities based upon the number of hours worked by the contractor on the dates in dispute.
PLB 7096, Award 12
Hasler, etc.
Page 3
R. C. Robinson
Organization Member