(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE: (Norfolk and Western Railway Company (Lake Region)

(1) The Carrier violated the Agreement when it assigned the work of dismantling the Erie Street Freight House at Toledo, Ohio to outside forces beginning September 16, 1974 (System File MW-BRS-74-28).

 (2) The Carrier also violated Article IV of the May 17, 1968 National Agreement when it did not give the General Chairman advance written notice of its intention to contract said work.

 (3) As a consequence of the aforesaid violations, Bridge and Building employes R. L. Singler, P. J. Evans, J. C. Barber and L. E. Snyder, Sr. each be allowed pay at their respective rates for an equal proportionate share of the total number of hours expended by outside forces.

 OPINION OF BOARD: Carrier contracted with the B 8 P Wrecking Company,
 an outside contractor, to: perform dismantling
 and remove concrete footings, fill pits and basements, remove all debris,
 and make all utility cutoffs relevant to eliminating a structure
 described as the "Erie Street Freight House" at the Carrier's facilities
 in Toledo, Ohio. The structure was some fifty feet wide, over 300 feet
 in length and immediately adjacent to Carrier trackage.

 While there was some dispute on the point, it would appear that for a period of time after the Carrier ceased using it, the structure had been leased to a firm or business not related to activities of the Carrier. According to the Carrier, after that lease expired, the building had stood vacant until storm damage rendered it useless and, in fact, it was found that the building had become a potential hazard. The Carrier contracted for its removal on the basis of a fee plus the salvage value of the building.

 Pertinent provisions referred to by the Organization in its claim are as follows:
 r.






        "(a) All work of construction, maintenance, repair or dismantling of buildings, bridges, tunnels, wharves, docks and other structures, built of brick, tile, concrete, stone, wood or steel, turntables, walks, platforms, snow and sand fences, signs and similar structures, as well as all appurtenances thereto, loading, unloading and handling all kinds of bridge and building material, shall be bridge and building work, and shall be performed by employes in the Bridge and Building sub-department. Construction work may be done by contract where there is not sufficient number of properly qualified furloughed employes available to perform such work or the Railroad Company does not have proper equipment to perform it..."


                        Rule 40 (a) (in part) Classification of Work. "Working Agreement". April 1, 1951, as amended.


This general issue has been argued numerous times within this industry and often between these parties. The Organization claims to have performed similar work on other facilities owned by the Carrier; the Carrier contends that a longstanding practice has existed for it to use outside forces for such work. We find no support for the Carrier in its attempt to categorically deny work to B b B forces based on a claim that it has historically performed such work with contractors. Rule 40 (a) is not ambiguous in its designation of general work jurisdiction. Neither can the Carrier's defense of not having proper equipment or that the B 6 B forces were fully occupied be considered controlling. Both of these circumstances have been found wanting as defenses in: other Awards in similar situations.
                    Award Number 21993 Page 3

                    Docket Number MW-21784


The compelling argument by the Carrier, not effectively refuted by the Organization, was the status or use of the building prior to its demolition. Carrier convincingly established that the structure had been out of railroad service for some years, even though it was close along Carrier's trackage. It had been leased to a firm for non-railroad purposes for a number of years and thereafter stood vacant. The Organization claims that B & B employes effected repairs to this building; the Carrier refutes such claims. mere assertions by the Organization do not constitute proof of such work. In the absence thereof, we must conclude that the structure was mere property in the Carrier's inventory at the time its removal was contracted for. Railroad companies own considerable property outside the scope of the various Agreements covering represented employes, and numerous awards support Carrier's rights to use, repair and dispose of such properties without consultation with, or involvement of, the Organizations. We must conclude, based "Erie Street Freight House" had become part of such property.

        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

        The Agreement was not violated.


                    A W A R D


        Claims are denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 31st day of March 1978.