PARTIES TO DISPUTE:

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

 (1) The Carrier violated the Agreement when, without notification to the General Chairman and without a conference having been held between the Chief Engineer and the General Chairman as required by Paragraph (a) of the February 24, 1951+ Memorandum of Agreement, it assigned outside forces to install track ties and rail on the Dorchester Branch from South Bay Junction to Fairmont, Massachusetts beginning May 10, 1978 (System Docket NH-11+).

 (2) As a consequence of the aforesaid violation, the following named employes shall each be allowed pay at their respective rates for an equal proportionate share of the total number of man-hours expended by outside forces in the performance of the work referred to in Part (1) hereof.


























                    DGekbi NumDpl- MW-23316

                    Docket ;cianber :?:;-


OPINION OF BOARD: Between May, 1978 and November, 197$, an outside contractor ~>PINION OF BO~I:D_ per>Lormeiiaitn extpnsiVe··t3`dekc'impravement project inclu the installation ofptrficlo:tiesrandtwalded ribbon rail on the Dorchester Branch (H8ranQ;;)imight of way.which..is.owned'by the Massachusetts Bay Transportation AritY~('ftQTA"): ,.The Carrier was never an owner of the Branch. In 1976, xltiitrustee 'of',the.Penn Central-conveyed the Branch to the HM. The MBTA granted;.tbe Carrier.a.license.-to. operate trains on the Branch and the Carrier per,fiorxted:.Ordinary-.maintenance;work:.-The outside contractor was engaged by the 1Mc)nc2.ziortitO,performanea,.of work-by,the outside contractor, the Carrier did np¢_give'trlotice. qrthold..a:conference'with the Organization. The Organization haa: brought-this.claim on behalf of thirty-five Maintenance of Way employes whp are..claiming wages: for an. equal share of the total number of hours worked bS.t tbecoutesiide i fprces .. . . ... . . . , , . Ir: t!.o ~.ut.:, ic', . ~,r, , .
        Both the Organization and the Carrier have charged each other with the

failure to timely.,raise.certain subjects on the property. After reviewing the
 regard-, we. find :no merit in either party's procedural objections. Thus, we will
 qonsALdLX·.the:Organization's contention that the Carrier violated Paragraph (a)
 of:1Wte;,Rebruary 24, :1954'Memorandum of Agreement as well as the Deed and
 Catttlract,attached'to the Carrier's submission as Exhibits A and B respectively.
 1.'iW traces ut:~..mo..i :.m ,..;.m .. - . ;i . . .
        The Organization contends the work performed by the outside contractor

is c1~overedy. thet:Scope Ruler. According to Paragraph (a) of the February 24,
 195'~:drgraethan~t,tlbhe..Carrier.,is prohibited from contracting out work reserved
 mvattttenaaem:Qf~'Way:employes unless it first gives notice to the Organization,
 hnJdsaA,r.osferenae'with a representative of the Organization and endeavors to
 rf*t&saamfually.:,sab.isfactory agreement concerning the disputed work. Since
 tifs0arri=tddtlinotv satisfy any of the Paragraph (a) prerequisites, the Organiza
 tion gsaerts (the u~laimants are presumptively entitled to receive the requested
 maryseetliefue The: Organization argues that the Carrier had sufficient control
 etferethe;,disputed %4drk since it operated trains over the Branch, was in charge of
 r®Wsineh&rdtkpmmdateaahce'and engaged in all the normal functions of a common
 c¢raifa tiAstlygitheaprgandzation--relies on-two recent Third Division Awards
 inM94tdzg theselsameapattfas -and-.'admilar claims. Third Division Awards No.
 230341~Megnttsc)goNo,.:r.23036;(Denn.is):-see-also Award No. 21 of Public law Board
 NR30~203D~idest~xi)·.:o. ' `' .. _ , _ ..
 No. 2203 (weston).
        The Carrier raises three defenses: The ca-z_:~r .._.,-. _..:_

        1.) The work performed by the outside contractor was beyond the

Carrier's ddpllnitjheand.contr6l-:(citing. Third Division Awards No. 20644 (Eischen)
 ar~JrVFQe r2Q639m((T0omey) ¢ ,. . _ .. - ... _
 and No. :'tJti~') ('it:owo~ -
 2.) The work was performed at the MBTlt's expense and solely for its benefit; ,..) Tlic wu-. ,:.~., ,~,.... : - .~ _ benefit;
 3.) The Carrier was neither a principal nor an agent in the transaction between the;MBTA·=gnd'.the outside contractor.
 betwec,n tlu_ :E;'1 ~i1 ,. , . . - _ .-, ___
                    Award Number 23422 Page 3

                    Docket Number MW-23316


The issue is whether the Scope clause contained in the applicable collective bargaining agreement between the Organization and the carrier specifically covers the work performed by the contractor. Generally, we have adhered to the proposition that where the disputed work is not performed at the Carrier's instigation, not under its control, not performed at its expense and not exclusively for its benefit, the work may be contracted out without a violation of the Scope rule. Third Division Awards No. 20644 (Eischen); No. 20280 (Lieberman); No. 20156 (Lieberman) and No. 19957 (Hays).

 Recently, we have refined the general rule. In Third Division Awards No. 23034 and No. 23036, we correctly ruled that the Carrier retains sufficient control over the disputed work if the Carrier participates in the contracting out process when it knows the work is covered by an applicable collective bargaining agreement. In those cases, we were concerned with the Carrier's attempt to evade its collective bargaining obligations merely by inserting a clause in the Carrier's operating agreement with the state government authority which stated that an outside contractor would perform track rehabilitation work. In Award Nos. 23034 and 23036, the Carrier assisted the state in obtaining an outside contractor and then sought to evade its labor agreement obligations by relying on the state operating agreement.

 The facts in this case are very different. The Carrier did not have any control over MBTA's determination of who should perform the work. The M$TA contracted directly with the outside contractor. The Carrier played no role (either as a principal or an agent) in selecting the outside contractor. Unlike the situation in Awards No. 23034. and 23036, the contracting out of the work was not instigated by the Carrier because there was no operating agreement between the state and the Carrier which covered this project. Here, the MBTA alone controlled when and how the work was to be performed. Since the Carrier had no control over the MBTA's actions, the Carrier was not evading any of its responsibilities under the applicable labor agreement. Since we have found that the Carrier had no control over the disputed work, the Carrier had no duty to notify and confer with representatives of the Organization.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: f 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 not violated.

                    Award Number 23422 Page ~+

                    Docket Number MW-23316

                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


Attest: '
        Executive Secretary


Dated at Chicago, Illinois, this 3rd day of November 1981.

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