( Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Chicago and Western Indiana Railroad Company

 STATEMENT OF CLAIM: Claim of the System Comoittee of the Brotherhood that:

 (1) The Carrier violated the Agreement when, without prior notification to or discussion and agreeme cnatolda forces to pave (black top) the Burnham Avenue Grossing on day 8 and 18, 1970 (System File 410-MofS).

 (2) The Carrier violated provisions of the Railway Labor Act when it failed and refused to specify a tine, data and place for ccnference as requested by General Chair
(3) M Foreman B. Grulh;a, Carpenters E. Patera, J. Tatingar, H. Bu-ralda, J. Quinn, J. Dk;akal, F. Gaydich, D. Basile, V. Evans and.Carpenter Leader P. Vagielaki each be allowed sicteen (16) hours' pay at their respective striigbt-tine rates and four (4) hours' pay at their respective tine and orehalf rates becauaa of th


On the two claim dates Carrier used outside forces to pave or blacktop the Burnham Avenue Crossing. The outside forces canaiated of tan (10) men who worked eight (8) hours on Yay 8, 1970 and twelve (12) hours on May 18, 1970. Claim is made that ten (10) Bridge and Building employee should be paid sixteen (16) hours straight time and four (4) hours overtime account the work being imp:operly performed by parsons outside the Agreement.

 The basis of the claim is that Carrier allegedly violated the mandatory notice requirements of Artic which, in pertinent part, reads as follows:









The record contains no denial or other mat".ion try Carries of the Organization's claim that Carrier failed to give notice acs required by Article IV. Accordingly, we find that Carrier did in fact ecmit the alleged violation of Article IV.

 Carrier's defenses on the claim is that the dispatad work is not exclusively reserved to lhintenanc- of ',"ay emoloyaes, and that the paving project involved special skill, and equipment.

 We find no merit in Carrier's contentions. '"ha proposition that exclusivity of nrrl, is no'. involved in an Article 1`J dispute is well settled try prior awards, and rarrants no further diacuesIcs. 'Sae Awards 18305 (~'aa) ani 19399 (0'P·1en). :s to the specialized natu~-~a of the pork, and the Carrier's lacs of mqutsfo -stewiale, skills, and equipment, `..hose matters, on the record befc^e c1n, cyst ba rede_wded as sere assertions by Carrier rhich are not supported by nrebst".vo crieenco. 1"a also note that these matters are mare appropriately cc-3?kcomed unds^ t_rticle 1`I b·foro rat-her:t:~tn after the work is parfor~d by olltsiS:3 f<~coo.

 P3 turn now to Carrier's contentions +-%at claimants rare on duty and
 ~'^ a.'.".:.` p3;,~ i.'1 i.'_3 cla5mm daft^a. i~,1'.`~r0`,13 prior A^13rdg hold that CC^R~ei.S8tI0a
 f o- an Article 7l violatim Chall be on the basis of acteal lasses 07117. (Atrards
 12.'05 and Ic'3`x9). On w:3 principle of stare decisis ra c3~all apply herein the
 ^zl.'.:.ga of "-e^iae grin- Am.rds and, thus, ca shall d,.^;f the clams for pro rata
 pay for the ti _-- cla-`ranaz rare on duty and under p'~y.

 The claim for four (4,) hams overtime stands on a different footing, horaver. 771 Arar&19155 (Duggan) this Hoard ruled that compensation is appropriatz where 'the claixsat sa is diavite'l and an believe the principle of this Aasrd also applies to claimants


who were off du -4 and not working while disputed overtime work was performed by outside forces. In this case the outside forces performed four (4) hours ovarti~ on .'by 18, 1972, while claimants performed no overtime on that date; thus the issue is raised of whether the overtime performed by outside forces represents lost earnings opportunities for claimants. The Carrier's statement is that claimants were offered overtine on the date in question, but the majority of claimants refus dispose of the overtime claim, especially since the Carrier possessed the knowledge eWar records wit shall therefore sustain the overtime claim to the extent of awarding the claimaa fLnur (4) hours overtime for the overtime performed by outside forces on 1by 18, 1970.

 In paragraph (2) of the claim Petitioner also alleges a violation of the Railway Labor Act in that Carrier did not comply with the Organization's request for a conference within the time limits prescribed by Section 2, Sixth, of the Act. Conceivably there could be a case where an alleged violation of the Act might be so connected with the merits of the case as to warrant its bei>a considered by the Board along with other factors in the case. In and of itself, though, and in the case at hand, such an alleged violation is not subject to the power of thin Board and the remedy therefor, if any, lies in a different forum. Consequently, we shall not determine whether such a violation occurred or otherwise decide the issues raised in paragraph (2) of the claim.



That the Carrier and the &aployes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and



The clair_, 13 sultained to Vie extent of four (4) hours overtime as indicated in t.".e aDirion.



                          BY Order of Third Division


ATTE.i?: ~~· ~.v'~ 1. r~-
      LXecutive Secretary


Dated at Chicago, Illinois, this 27th day of February 1973.