THIRD DIVISION Docket Number MW-19514


                          Alfred H. Brent, Referee


            (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

                        (Burlington Northern Inc.


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


          (1) The Carrier violated the Agreement when, without benefit of notice to or consultation and agreement with General Chairman Funk, it contracted to Gay Margado Chevrolet Inc. the work of repairing Truck #135 (System File 314-F/MW-84Contracting Out - 9-


            (2) Mechanics C. Anderson, H. Fisher, C. Hagey, I. Larsen, J. Wienecke, S, Shanko, R. Robertson, C, Lassiter, G. Godvig and C. Dykman 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 forces in performing the work referred to in Part (1)


          OPINION OF BOARD: This claim is based on the Organizations contention that the

          body work necessary to repair a Chevrolet truck, sub-contracted by the Carrier, is of the type and character reserved to Roadway Equipment and Auto· motive Repair Department employes under the Parties' Agreement. When the Carrier made no effort to obtain the approval of the General Chairman prior to subcontracting, the Agreement


          The Parties have agreed in Rule 40, Article X, that "all work on the operating property, as classified in this Agreement, shall be performed by employees covered by this Chairman and designated Representative of Management, it is agreed that certain jobs may be contracted to outside parties account inability of the railroad due to lack of equipment, qualified forces or other reasons to perform such work with its own forces.,..".


          This contracting rule has been before this Board numerous times under

          various factual circumstances. In each case this Board has up-

          held the Organization when the Carrier failed to obtain the required approval to

          remove work from the confines of this Agreement. The Carrier asserts that Me

          chanics in its repair shop are not skilled in the body repair work and therefore

          it was not necessary to secure the prior approval of the Organization to have this

          work performed outside. The claimants are mechanics who perform all required work

          under Rule 41 of the Agreement. While the Carrier has had similar repair work

          performed by outside contractors in the past, it was done only after discussion

          with the Organization.


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:'.~::;;~3 t
 Award Number 19624 Page 2
 · Docket Number MW-19514

          This Board has held in Award 7060 (Carter), that both Parties had an important obligation to each other.


                  "..It contends that special skills and equipment were required and for this reason Carrier could properly contract the work. We point out, however, that under the controlling rule in the present Agreement, Carrier was required to give the work to its employee unless an agreement with the General Chairman is obtained permitting the contracting of the work 'due to lack of equipment, qualified forces or other reasons.' No attempt was made to secure such an agreement and the controlling rule was therefore violated. Awa We do not intend to imply that the General Chairman could arbitrarily refuse to permit the contracting of work in a proper case. We do state that the failure to negotiate with the General Chairman precludes any contention under the rule before us that the carrier could properly proceed to farm out the work. The rule provision is clear and unambiguous. The Carrier cannot be excused from complying with its plain provisions."


          Award 14960 (Referee Lynch) between these same parties, involved Rule 41 as embracing work within the contracting paragraph of Rule 40, This Board has consistently held that for the Carrier to come within an exception to the rule it must fulfill its obligation to obtain the prior agreement or consent of the Organization by notifying and discussing the matter with the Organization.


                  The Board held in Award 13845:


                  "While Petitioner challenges the contention that a licensed plumber was needed on the job, it maintains that whether or not this was so, the consent of its General Chairman as a condition precedent to such an outside contract was no less required by Rule 40 of the Agreement. In light of prior decisions by this Division concerning the selfsame Agreement on this property and also involving a measure of plumbing work, as well as the repeated instances in the past where this Carrier wought the antecedent consent of Petitioner before retaining independent contractors on jobs which, at least in part, required licensed plumbers, it would seem that Petitioner's position on this aspect of its claim is well taken. See Awards 4920, 4921 (Boyd), 7060 (Carter). Moreover, in view of the apposite work history on this property it may be expected that if the Carrier had taken up the nature of the subject job with Petitioner before it engaged the services of an outside or not a licensed plumber was required by local law could have been quickly resolved by communication with the city authorities, if necessary. We hold that, in all the Carrier to obtain the agreement or consent of the General Chairman of Petitioner to the outside contract in issue was a violation of Rule

      i 40 of the Agreement."


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                    Award Number 19624 Page 3

                    Docket Number MW-19514


Carrier presented issues in its submission which were not handled on the property and we cannot consider them since this Board has consistently held that new issues not raised on the property but raised for the first time in the submission are inadmissible and not to be given consideration. (See 11939, 11987, 12388, 13957, 16423, 16061)

 Based on the many precedents, this Board concludes that the Agreement was violated.

        FINDINGS: The Third Division of the Adjustment Hoard, 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 are 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


        The claim is sustained,


        ' NATIONAL RAILROAD ADJUSTMENT BOARD

        By Order of Third Division


        ATTEST: Executive ecretary


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