(Brotherhood of Maintenance of Way Employes PARTIES TO DISPCNE: (The Kansas City Southern Railway Company

(1) The Carrier violated the Agreement when it used outside forces to unload new rail at DeQuincy, Louisiana. (System File 013-31120)

 (2) The Carrier also violated Article IV of the National Agreement of May 17, 1968 when it did n written notice of its intention to contract said rail unloading work.

 (3) Track Forer_an Leo Clark and Track Laborers A. Tucker, C. Gray, Jr., J. B. Rankins, K. D. Porties and A. Nelson each be allowed pay at his respective straight time rate for an equal proportionate share of the total numbe forces in the performance of the rail unloading work.

 OPINION OF BOARD: The Petitioner contends that the Carrier violated the
 Agreement when it permitted outside forces to unload new rail at DeQuincy, Louisiana between July 7, 1972 and August 4, 1974. The Petitioner contends that the Carrier did not give notice in writing, or otherwise, to the General Chairman of its plan to contract out this rail unloading work to outside forces as required by Article IV of the May 17, 1958 National Agreement.

 The Carrier contends that the rail was the property of Servitron, Inc. and was not of the Carrier's ownership until unloaded and placed on the ground as per contract between the Carrier and Servitron.

 On page 2,fRP-_37, Employes Statement of Facts, we quote as follows:



From the Petitioner's rebuttal page 1 LP.P-50/ ·:e quote as follows:

Carrier's Exhibit No. 1, referred to above, contains the following information; Jn June 14, 1972 The order called for the rail to be shipped "F.O.B. DeCuincy, Louisiana (unloaded from cars)." It eras to be shipped "Care of L.M. Barnett, Asst. V.P., DpQuincy, Louisiana." The instructions were that "Routing to be furnished later" a.::·7 that the seller would be "held responsible for failure to follow f_ei
Comparing the quotation from the "Employes stetement of Facts" above with the essential information contained in Carrier's Exhibit No. 1, also quoted above, it is clear that the information is virtually the same in both, with the only exception being that the Employes Statement did not contain the parenthesis statement "(unloaded from cars)." Searching all the correspondence between the parties prior to the "Employes Statement" to this Board, we do not turn up any other possible source for the explicit and quoted information in the "Employes Statement" other than the purchase order now before this Board as Carrier Exhibit No. 1. The inference then is overwhelming that the Organization was given a copy of Carrier's Exhibit No. I on the property. This is not the case of one assertion "standing ofj against another assertion; clear evidence of record, not speculation or em jecture, enables this Board to resolve this issue. Thus, Carrier's Exhibi No. I, having been discussed on the property, is properly before this Boar

 Exhibit No. 1 is a purchase order from the KCS Railway which contained the terms of a valid contract "offer." The offer was "accepted" by a Mr. Curtis, the Vice President of Servitron, Inc. At the point of acceptance or approval by Servitron, we then have a valid and legally enforceable contract. The terms are clear and both parties are bound by those terms and both have the right to sue in a court of law to enforce the terms. The contract between KCS and Servitron, Inc. calls for delivery of the rail 'T.O.B. DeQuincy, Louisiana (unloaded from cars)." It is undisputed that Servitron employees did is fact unload the cars as per the contract agreement. The Employes of the KCS Railway have no
                              Docket Number MW-20442


rights under their collective bargaining agreement with KCS Railway
 relating to handling rail owned by another company. The work in the
 case before this Board did not belong to the Carrier; and the Agreement
 of the parties to this dispute can only apply to that work which the
 Carrier has the power to offer. See Award 13056. Certainly routing and
 t billing errors in the movement of freight cars by agents of the Carrier,
 or even the very extreme of intentionally improperly naming on waybills
 on the part of Carrier's agents, can not serve to convert the property
 of another (in this case Servitron) to that of the Carrier. Thus we
 must deny the claim.
 The entire issue of the employment status of Mr. L. :4. Barnett
 was not properly developed on the property where now both parties attempt
 to make an issue of his status for the first time before this Board.
 Assertions concerning his status on the part of the Carrier with counter
 submissions on the part of the Organization are not properly before us
 i
 While not affecting the outcome of this case because of the
 overriding status of the contract terms between KCS and Servitron, the
 Board feels compelled to point out that mere repeated unsupported state
 , ments on the part of the Carrier are most unpersuasive in the eyes of
            this Board where the Carrier alone possesses supporting records a:id

            documents that could have been utilized to back up the Carrier's state

            ments: i.e., statements in RP-23 letter, RP-28· Carrier Statement and

            RP-91 Carrier Rebuttal that "freight charges were assessed against

            Servitron, Inc. for the transportation of the rail."


            FINDINGS: The Third Division of the Adjustment Board, upon the :hole

                  record and all the evidence, finds and holds:


                  That the parties waived oral hearing;


            That the Carrier and the --cployes involved in this dispute are respectively Carrier and Drployes within the meaning of the Railway Labor Act, as approved J,ine 21, 1934;


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


                  That the Agreement was not violated.


.a

            Award Number 20639 ?age 4

            pocket Number Mw-20442

            9 W A R D


G13im denied.
                    ~AT!ONAL F,A:ILROAD ADJUSTt-M'T BOARD

                    Ly Order of "':._.;. Division


..Vcl:~_`. _ SEcrceTa-1'y

 D::,`,ed at ChicaEo, 11_i·nois, -his 7t-.h day of ;arch1975.