Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28680
THIRD DIVISION Docket No. MW-28696
91-3-89-3-54
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.

(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, without a conference having been held between the General Superintendent-Chief Engineer and the General Chairman as required by Rule 2, it assigned the hauling and placement of crush and run materials utilizing dump trucks, for construction of a side track subgrade at LaGrange, Georgia, between Mile Post 68.5 and Mile Post 73.7 to Lewis General Contractors of Dublin, Georgia beginning on November 2, 1987 and continuing thereafter [System File 37-AWP-GA-87-64/12(88-284) AWP).

(2) Because of the aforesaid violation, each of the Claimants,
C. Lovelace, J. L. Hill, F. Germony, W. J· Walker, J· J. Hull, D. Trammell,
J. M. Martin, W. Cummings, D. D. Ingram, L. J. Hunt, H. Hudson, R. Walker,
W. Jennings, J. Lumpkin and E. W. Taylor shall be allowed pay at their respec
tive rates, for an equal droportionate share of the total number of man-hours
expended by employes of the outside contractor performing the work referred to
in Part (1) hereof."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:'

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and emp'loyes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment'Board has jurisdiction over the
dispute involved herein. . 4-



In connection with track rehabilitation work near LaGrange, Georgia, the Carrier arranged for the purchase and delivery of "crush and run" stone to the site by an outside firm. Actual rehabilitation work was performed by employees represented by the Organization.
Form 1 Award No. 28680
Page 2 Docket No. W-28696
91-3-89-3-54

The organization argues that the Carrier violated Rule 2, Contracting, with special reference to
The Board finds that delivery of material purchased from an outside source does not constitute any violation of Rule 2. Other than delivery as required by the Carrier, all work was performed by Carrier's employees.

Consonant with this conclusion are recent Third Division Awards 27184, 20926, and 20783.

As part of its defense, the Carrier argues as to the failure of the Organization to demonstrate "exclusive" right to the work. The Board notes that the exclusivity concept is not appropriate to this situation involving alleged use of outside contracting. This view is supported by many previous Awards.



      Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest: X~Z 4r.,eg,
      .ancy J. v - Executive Secretary


Dated at Chicago, ILLInoLs, this 28th day of February 1991.