SPECIAL BOARD OF ADJUSTMENT NO. 1016
AWARD NO. 152
CASE NO. 152
Brotherhood of Maintenance of Way Employes
vs.
Consolidated Rail Corporation
ARBITRATOR: Gerald E. Wallin
DECISION: Claim sustained in accordance with the Findings
DATE: July 10, 2001
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned an outside contractor
(National Engineering and Contracting) to drive sheet piling, install tie back
rods and place rip rap to repair the sea wall at the C&P Dock, Whisky Island,
Cleveland, Ohio from June 24 through August 15, 1996 (System Docket
MW-4630).
(2) As a consequence of the aforesaid violation, B&B Foreman K. G. Champa
and Mechanics W. E. Johnson, F. R. Hoyt, G. Pongonis, S. J. LaCaera, P. J.
Kolcan and J. A. D'Orazio shall each be allowed `... (8) hours at the
appropriate rate of pay for the hours worked by (7) men from National
Engineering and Contracting of Cleveland, Ohio on June 24, 25, 26, 27, 28
1996, July 1,2,3,5,8,9,10,11,12,15,16,17,18,19,22,23,24,25,26,29,
30, 31, 1996, August 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 1996 and
continuing until this matter is resolved."'
FINDINGS OF THE BOARD:
The Board, upon the whole record and on the evidence, finds that the parties herein are
Carrier and Employees within the meaning of the Railway Labor Act, as amended; that this Board
is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and
that the parties were given due notice of the hearing.
According to the record, Carrier notified the Organization of its intent to contract out what
it said was emergency repair work by its letter dated February 7, 1998. Carrier asserted therein that
rapid deterioration since the previous September required immediate replacement of the seawall.
The Organization disputed this emergency characterization of the situation by noting the gradual
deterioration as well as the fact that the work did not begin for more than four months after the so-
Special Board of Adjustment No. 1016 Award No. 152
Page 2
called "immediate replacement" was claimed to be necessary.
The Carrier also alleged lack of scope coverage. The Organization, however, produced
evidence of past performance of similar work by scope covered employees, including the seawall
repair at Ashtabula Harbor, to support its contrary assertions.
The Carrier also noted that several of the Claimants were on vacation or jury duty during the
Claim period. On other days, they were on duty elsewhere and under pay.
On this record, we find that the Organization's evidence does establish scope coverage of the
work as against the use of outside contractors. Carrier's emergency defense has not been established
by any probative evidence. In addition, the nature of the deterioration and the elapse of time between
notice and the beginning of the work entirely under cut the Carrier's emergency assertions.
Consequently, we find the Carrier did violate the Agreement when it contracted the work as it did.
The remedy, however, is not so straightforward. While the Carrier did not refute the dates
of work specified in the Claim, the Organization's own appeal letter dated November 21,1996 raises
a significant question. Despite different a different starting date in the Claim, the appeal said the
work did not begin until days later on July 1, 1996. It is also clear that most of the Claimants were
not available on each of the Claim dates. Moreover, it is undisputed that they were under full pay
throughout.
Given this unique record, we find the appropriate remedy to be one that provides each
Claimant with additional compensation equal to twenty straight time days of eight hours each.
AWARD:
The Claim is sustained in accordance with the Findings.
1110
erald E. Wallin, Chairman
and Neutral Member
R. C. binson, D. L. Kerby,
Org tion Member Carrier Member