(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE:

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

 (1) The Carrier violated the Agreement when, without notice to or agreement with General Chairman Funk, it assigned or otherwise permitted outside parties to perform ditching work near Linnton, Oregon on May 28, 29, June 1, 2, 3, 8, 9, 10, 11 and 12, 1970. (System File 312E/MW-84-Contracting Out-7-24-70)

 (2) Machine Operators L. Schuh, 0. Wells, Truck Drivers S, Suckow
 and F. Ibabao each be allowed pay at their respective straight time rates
 for an equal proportionate share of the total number of man hours expended by
 outside parties in performing the work referred to in.Part (1) of this claim.

 OPINION OF BOARD: The Organization contends that the Carrier violated the con-
 tracting out rule of the Agreement when it subcontracted the work of cleaning a drainage ditch between the Carrier's newly constructed passing track and a State
When this track was origi.ially ccaatructed on Carrier operating property, fill material spilled over the embankment into the drainage ditch between the track and the highway. Construction work was performed by Carrier Maintenance of Way employees under the Agreement. The Organization contends that the Carrier had the necessary equipment and staff at the location during the time the job was contracted out to repair the spillage.

 While the Carrier asserted on the property that the work performed by the sub-contractor was performed on land granted to the State of Oregon, no probative evidence to sustain that allegation was introduced. A copy of the actual easement to the State of Oregon would have sufficed. Absent such proof this Board moat find that the passing track is on operating property and the shoulder of the track and the drainage ditch is an integral part of the track and therefore the cleaning of spill material was in fact a necessary operation to the completion of the passing track, which is to contract out must conform to Rule 40, This Board has on a number of occasions ruled on the contracting out rights of the Carrier, (Referee Carter in 7060 and Referee Hutchins in 13349)

 <%x. y


Finally, the question of damages was never raised by the Carrier when the case was handled on the property and it cannot be raised for the first time in the submission. It is well established principle of this Board that new evidence or arguments not presented on the property cannot be considered when the matter is reviewed by this Board, (See 11939, 11987, 12388, 13957, 16423, 16061)

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employee involved in this dispute am respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        that the Agreement was violated.


                    A W A R D


        fhe claim is sustained.


        ' NATIONAL RAILROAD ADJUSTMENT BOARD

        By Order of Third Division


        ATTEST: Executive Secretary


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

 ....:-.