PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
AWARD NO. 69
Case No. 69
Referee Fred Blackwell
Carrier Member: J. H. Burton Labor Member: S. V. Powers
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
vs.
I
CONSOLIDATED RAIL CORPORATION
i
I
STATEMENT OF CLAIM:
I
Claim of the System Committee of the Brotherhood that:
I
(1) The Carrier violated the Agreement when it assigned outside forces (D. Millious
Contractors) to unload ties on the Lehigh Valley Main Line and River Line from April 13
through June 1, 1987 (System Docket CR-3473).
(2) The Agreement was further violated when the Carrier failed to furnish the General
Chairman with advance written notice of its intention to contract out said work.
(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Mr. E. J.
Hollock shall be allowed pay for:
""eight (8) hours at the pro-rata class 2 machine operators rate for: April 13, 14,
15, 16, 20, 21, 22, 23, 24, 27, 28, 29, 30 May 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21,
22, 25, 26, 27, 28, 29 and June 1 1987 and continuing until the work is completed.
Additionally, the Organization claims eight (8) hours at the time and one half class 2
machine operators rate for each of the following dates: April 17, 18, 19, 25, 26 May 2, 3,
9, 10, 16, 17, 23, 24, 30, 31 and continuing until the work is completed:"
FINDINGS:
Upon the whole record and all the evidence, and after hearing on December 17, 1990,
FRED BLACKWELL
in the Carrier's Office, Philadelphia, Pennsylvania, the Board finds that the parties herein are
ATTORNEY AT LAW
P.O. BOX 8095
WESTCOLUMBIA,
S.C.29171
18031791-BBSB
SBA 1016 / Award No. 69 - Case No. 69
DECISION:
Claim sustained as hereinafter provided.
This claim arises from a claim filed June 1, 1987, by Machine Operator E. J.
i
Hollock on the basis of allegations that the Carrier violated the Scope Rule and Rule 1 of
! the current Agreement by contracting out the work of unloading ties on the Lehigh Valley
Main Line (MP 50 to
Port
Reading Junction) and River Line (CP 33 to MP 69) on the New
Jersey Division, between April 13 and June 1, 1987.
The subject work was performed with a modified backhoe mounted on a gondola;
after the ties were offloaded from the gondola, the ties were used in track repair and
maintenance of the roadbed.
I
During the claim period of April 13 through June 1, 1987, the Claimant was
employed by the Carrier at times as a Mechanic in the Easton MW Repair Shops, and at
times as a Trackman on the New Jersey Division.
By letter dated June 1, 1987, the Organization presented a claim for compensation
at straight rate for each week day during the claim period, and for time and one-half pay
for Holidays and weekends during the claim period. The claim presented to the Board
FRED BLACKWELL
shows a request for compensation in the claim period for thirty-five (35) dates and fifteen
ATTORNEY AT LAW
P.O. BOX 6095
WESTCOLUMBIA,
S.C.29171
(1031791.8086
SBA 1016 / Award No. 69 - Case No. 69
The Carrier states in its submission that the contractor worked on only thirty-one
(31) dates in the claim period and did not work on any of the dates for which time and
one-half is claimed.
The Organization's position is that the claim should be sustained on the ground
that the Carrier's action of contracting out the subject work violated both the work
I
~!
jurisdiction provisions of the Scope Rule and the notice provisions of the rule, that
requires the Carrier to give fifteen days advance notice of the contracting to the General
Chairman. The Organization also submits that the Carrier's contention that the Claimant
was not qualified for the offloading position is not valid because the Carrier did not bulletin
I
the position before the contracting of the work.
I
The Carrier's position is that the grievance should be denied on the grounds that
Claimant was not qualified to operate the modified backhoe machines that are mounted
I on top of gondola rail cars in order to offload ties, that the Claimant was on duty and
under pay while the work was performed, and that the Carrier's limited supply of modified
backhoes were in use and not available for this project.
From full review and assessment of the record as a whole, the Board finds and
concludes that the protested contracting out by the Carrier violated the work jurisdiction
FRED BLACKWELL
ATTORNEY AT LAW
PD BOX 6095 3
WESTCOLUMBIA
S.C.29171
16031791-6066
SBA
1016
/ Award No.
69 - Case
No.
69
provisions and the notice provisions of the confronting Scope Rule.'
The Board, after careful study of the Carrier's contentions, finds Carrier's
contentions unpersuasive and not supported by the record. Therefore, the Board finds
that the claim has merit and that a compensatory remedy is in order.
With regard to remedy, the record shows that the facts and contentions in this
case are similar to those in Awards Nos. 43 and 66 of this Board, which Awards, the
I
Board notes, did not involve Claimants who, like the herein Claimant, were not qualified
I
to perform the disputed work during the claim period
.2
The Board observes, however,
that the Carrier did not bulletin the position in question before the contracting of the
offloading work: the Board cannot determine, retroactively, whether the contracting would
have been canceled or modified by the Carrier if there had been advance notice and
discussion about the intended contracting. Therefore, in the Board's judgment, the
differing fact concerning the Claimant's lack of qualifications does not evidence such a
substantial difference between the claims in Awards Nos. 43 and 66 and the herein claim
as to preclude a compensatory remedy in this case.
Accordingly, adhering to the rationale set out in this Boards' Awards Nos. 43 and
66, the claim will be sustained to the extent that the Claimant will be awarded
1
The Hopkins-Berge Letter of Agreement dated December
11, 1981,
has been ornitted
from the considerations of this dispute. Said letter was held not applicable on Conrail in
this Board's Award No.
66-A
executed on January
18, 1993.
2
The Carrier's submission states that the Claimant successfully invoked Rule
3,
Section
FRED BLACKWELL
2, subsequent to the filing of the instant claim, and became qualified to unload equipment
ATTORNEYATLAW
from gondola cars with the use of a modified backhoe mounted on a gondola.
P.O. BOX 6095 4
WESTCOLUMBIA
S.C.29171
(BD)791-6066
' SBA 1016 / Award No. 69 - Case No. 69
compensation at the Claimant's wage rate for one-half of the hours worked by the outside
backhoe operator on the dates enumerated in the claim during the period of April 13
through June 1, 1987, subject to a maximum of twenty (20) work days. The dates
enumerated in the claim must be confirmed by a joint check of the pertinent records.
In view of the foregoing, and based on the whole record, the Board finds that the
Carrier violated both the work jurisdiction provisions and the notice provisions of the
I
Scope Rule of the BMWE Agreement and that on that basis, a sustaining award is in
order.
I
i
I _
Fred Blackwel
Chairman / Neutral Member
Special Board of Adjustment No. 1016
i July 20, 1994
FRED BLACKWELL
ATTORNEY AT LAW
P.O. BOX 6095 5
WEST COLUMBIA,
S.C.29171
(803(791.8086
SBA 1016 / Award No. 69 - Case No. 69
AWARD
The Agreement was violated.
The claim is hereby sustained to the extent that the Claimant is awarded
compensation at the Claimant's wage rate for one-half of the hours worked by the outside
backhoe operator on the dates enumerated in the claim during the period of April 13-June
1, 1987, subject to a maximum of twenty (20) work days; said dates enumerated in the claim
must be confirmed by a joint check of the pertinent records.
Jurisdiction is retained for the consideration of written requests for Board
consideration of questions concerning the implementation of this Award, which requests are
received in the office of the undersigned on or before September 19, 1994.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016.
v
011
Fred Blackwell
Chairman / Neutral Member
Special Board of Adjustment No. 1016
01
S. V. Powers, Labor Member . H. urt , Carrier Member
Executed on
3
'?~
, 19,94
FRED BLACKWELL
DOC\CONRAIL\1016\69-69J20
ATTORNEY AT LAW
P.O. Box 6095
WEST COLUMBIA,
S.C.29171
18031791-6686