(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The Carrier violated the Agreement when it assigned outside forces to excavate and drive piling for a turntable and for floodlight towers at Northtown Yard, Minneapolis, Minnesota /System File T-M-135C/MW-84(c)
 8/22/74 Al

 (2) Group 1 Machine Operators F. Thiel, V. Klingelhofer, C. Carlson, F. Swanson, E. Griffith, L. Starkka and W. Mercier each be allowed twenty-eight (28) hours of pay and B&B employes L. Schauff, H. Borg, H. Saker, 0. Olson, H. Rydberg, D. Schober, M. Miller, C. Nordquist, W. Pollo, H. Zierden, H. DeYaeger, D. Karnowski, J. Lecy, P. Kepner, J. Wyers, S. Lippert, K. Walz, M. 0. Anderson, P. Havel, M. E. Anderson, N. Rasmusson, C. Soderberg, M. Russell, R. Lahr, L. Johnson, D. C. Lippert, R. Soderberg and C. Beliveau each be allowed forty-one (41) hours of pay at their respective straight-time rate because of the aforesaid violation.

 OPINION OF BOARD: This dispute involves the contracting out of the driving
 of piling for the foundations for a turntable and foot
 ings for floodlight towers at Carrier's Northtown Yard in Minneapolis-St. Paul.
 It is undisputed that Carrier contracted out that portion of the work described
 above which consumed approximately 1027 man hours of work. The Carrier advised
 the Organization of its intention to contract the work, as provided by the
 Agreement. The Organization disagreed with the necessity for such action,
 precipitating this dispute.

 The Note to Rule 55 of the Agreement provides that work may be contracted by Carrier when specia and where special equipment is not owned by Carrier and when the Carrier is not adequately equipped to handle the work, among other reasons. In the instant case there is no question but that Carrier had employes with the skills to perform the work. The crux of the matter is whether or not Carrier had the requisite equipment available to perform the pile driving.


A study of the handling of this dispute on the property reveals a persistent conflict with respect to the issue of whether or not the Carrier had equipment capable of performing the work in question. The Petitioner insisted that there was equipment available at some point on the system which was capable of handling the pile driving; the Carrier just as adamently asserted that the equipment was not available and could not perform the needed work in the first instance. The entire matter turns primarily on whether or not the Carrier had the equipment to do the pile driving. It is long established, and for obviously sound reasons, that this Board cannot resolve conflicts in evidence. Therefore, we are unable to make a determination as to whether there the needed work: the Claim must be dismissed.

        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 there is an irreconcilable conflict in evidence.


                    A W A R D


        Claim dismissed.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 19th day of May 1977.


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