(1) The Carrier violated the Agreement when it assigned to outside forces the work of extending the house track at Bigelow, Minnesota, i.e. grading, laying rails, ties, etc.


          (2) The Carrier was also in violation of Article IV of the National Agreement of May 17, 1968 when it failed to notify General Chairman Larson of its intention to contract said work.


          (3) Foreman W. E. Olson, Laborer E. D. Vande Poppe, Laborer R. T. Schwebach and Machine Operator Cort Grimmius 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 described in Part (1). (System File 0-981-19-73)


        OPINION OF BOARD: Beginning on or about April 16, 1973 a project was

        undertaken at Bigelow, Minnesota which included

        relocating turnouts and extending existing trackage which was used by

        one of Carrier's customers, Farmers Elevator Company. Section forces

        had done all track work on the old trackage involved in this dispute

        since at least 1949. In this instance Carrier assigned its track forces

        to perform the work of relocating the turnouts and an outside contractor

        was given the work of track construction and necessary grading. As a

        consequence, Petitioner filed the claim herein alleging that Carrier had

        violated the Agreement as well as Article IV of the National Agreement

        of May 17, 1968 when Carrier permitted contractor's employees rather

        than track forces of its own to perform the track construction work.


          Carrier contended that the Farmers Elevator Company had leased the old track and additional rigbt-of-way from Carrier in order to extend the trackage and avail itself of certain advantageous new tariffs. Carrier argues that when the customer contracted with an independent contractor to build the tracks in question for its exclusive use, the work was not Carrier's responsibility and the fact that the new trackage was located on Carrier's right-of-way is immaterial. Carrier cites rulings of the Interstate Commerce Comission which held that a track constructed by an industry at its expense is in no sense a part of the property of the Carrier. Carrier asserts that since this trackage was a "piivate siding",


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                  Award Number 20895 Page 2

                  Docket Number MW-20907


construction or maintenance of such track at the Carrier's expense would constitute preferential treatment for the customer and be violative of the law. The Carrier concludes that since the right-of-way and old trackage had been leased to the customer the Carrier was not in violation of any agreement.

 The Organization stated throughout the handling of this Claim, without denial, that the type of work involved in this dispute was embraced within its Agreement Department forces. Since Carrier's defense was based largely on the assertion that the right-of-way was leased to the Elevator Company, Petitioner requested that Carrier submit a copy of the lease to clarify the issue in dispute. The Organization argues that Carrier did not furnish a copy of the lease and by letter dated November 15, 1973 told the Organization that the lease had not been consummated as of the date of the conference. In addition, Carrier informed the Petitioner that it would not be agreeable to furnishing a copy of the contract. Petitioner argues that Carrier's omission of the lease was fatal to its defense, and since a prima facie case had been established, the Claim must be sustained.

 It is noted that Carrier with its rebuttal argument before this Hoard submitted a copy of a lease agreement with the Elevator Company dated April 13, 1973. Such evidence cannot be considered since it is well established doctrine that new evidence which was not presented during the handling of the dispute on the property may not be considered by this Hoard.

 Under all the circumstances, this dispute is aaalagous to that which this Hoard considered in Award 19623. In that Award we said:

        "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 Hoard moat find that the passing

        track is on operating property and therefore the

        cleaning of spill material was in fact a necessary operation

        to the completion of the passing .track, which is work

        within the scope of the Agreement."


Similarly herein, we must find that the work of extending the trackage was work which should have been assigned to track forces since it occurred on Carrier's right-of-way and was work within the Agreement. Furthermore, Carrier did not give the notice required under the National Agreement. The question of damages was not raised by Carrier.
                  Award Number 20895 Page 3

                  Docket Number h8J-20907


        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 Employes 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 Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        Claim sustained.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: a'v

        Executive Secretary


Dated at Chicago. Illinois, this 12th day of December 1975.

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