SPECIAL BOARD OF
Award No. 10
Case No. 10
TO
Brotherhood of Maintenance of Way Employees
and
CSX Transportation, Inc. (formerly the Baltimore and
Ohio Railroad Company)
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the
Carrier assigned outside forces (Kemron
Environmental Services Inc.) to perform
Maintenance of Way work (pouring concrete
into a scale pit) at Moorefield Yards,
Indianapolis, Indiana, on May 23, 1994
[System File B-TC-9547/12(94-808 BOR].
2. The Agreement was further violated when
the Carrier failed to furnish the General
Chairman with advance written notice of its
intent to contract out the work.
3. As a consequence of the violations
referred to in Parts (1) and/or (2) above,
Messrs. A. G. Roark, M. D. Smith, K. N.
Bergman, R. E. Barksdale and L. Farris shall
each be allowed eight (8) hours' pay at their
respective rates.
FINDINGS:
This Board, upon the whole record and all of the evidence,
finds and holds as follows:
1. That the Carrier and the Employee involved in this
dispute are, respectively, carrier and Employee within the
meaning of the Railway Labor Act, as amended,; and
2. That the Board has jurisdiction over this dispute.
OPINION OF THE BOARD:
On April 22, 1993 a United States District Court issued a
consent decree that required the Carrier to comply with the Clean
Water Act by arranging for the cleanup of an empty pit under
certain track. After the Carrier engaged outside forces to do
so, the Organization claimed that the carrier improperly
permitted the outside forces to pour concrete into the empty pit,
which had contained a track scale, to seal the pit.
The location of the property under the Carrier's main track
constitutes the requisite basis to trigger application of the
scope provision of the collective bargaining agreement. The
scope provision, however, affords the Carrier an opportunity to
use outside forces when the members of the bargaining unit lack
the required special skills and also when the Company lacks the
equipment or facilities to perform the work.
The record substantiates that the overall environmental
cleanup required special skills and special expertise. The
record omits any evidence that bargaining unit members had
participated in court-ordered environmental cleanups in the past.
Although the scope rule embraces the general task of pouring
concrete, pouring concrete as one specific aspect of a courtordered overall environmental cleanup performed by a company with
special expertise constitutes work outside the scope provision
because of the integrated nature of the environmental cleanup and
the special needs that exist to perform such a cleanup. As a
consequence and under these specific circumstances, the Carrier
did not violate the Agreement by permitting the specially
licensed outside forces to pour the concrete.
Notwithstanding this substantive finding, the Carrier failed
to comply with the Addendum 13 requirement to provide advance
written notice to the organization about the intent to use
outside forces. The Carrier failed to provide such notice.
With respect to a remedy for this violation, the Carrier
failed to provide any explanation for the failure to provide
advance written notice to the Organization. In the absence of
any mitigating explanation from the Carrier for failing to
provide the required advance notice or any credible challenge by
the Carrier to the requested remedy of eight hours of pay for the
named Grievant's, the Board shall grant the requested relief.
AWARD
The Claim is sustained in accordance with the Opinion of the
Board.
Robert L . Douglas
Chairman and Neutral Member
Donald Bartholom Patricia A. Madden
Employee Member Carrier Member
Dated: - 1°2~~
