(1) The Agreement was violated when the Carrier assigned or otherwise permitted outside forces (John Nunn of Laramie, Wyoming) to construct and repair right of way fence between M.P. 558.65 and M. P. 561.25 near Laramie, Wyoming beginning October 10, 1989 and continuing (System File S-236/900144).

(2) As a consequence of the violation in Part (1) above, furloughed Wyoming Division Maintenance of Way employes A. Guardiola, D. D. Fernandez, B. H. Bogart and L. F. Hill shall each be allowed pay at the B&B laborer's rate for an equal proportionate share of the total number of man-hours expended by the outside forces."

Form 1 Award No. 30201

Page 2 Docket No. MW-29841

94-3-91-3-210

This claim is on behalf of four furloughed employees in the Maintenance of Way Department, in the Wyoming Division, who had submitted availability forms to Carrier indicating a willingness to accept employment in the B&B Subdepartment working on right-of-way fencing. The organization alleges that its General Chairman was placed on notice on May 15, 1989, of Carrier's intent to subcontract the work at issue here, and that the work was commenced by a subcontractor on October 10, 1989.

Carrier maintains that it served an informational notice on the organization that ranchers in Wyoming would be performing fencing work on their property and that no subcontracting took place.

The record reveals sufficient evidence that when fencing work of this type (exceeding one mile) has been performed by carrier's forces, it has been done by B&B Subdepartment employees. It also reveals numerous examples of contracting out such work by Carrier to outside forces. Further, there is an indication that the parties met in conference to discuss various ways to handle the issue. At the same time, however, this Board must agree with Carrier that, from a technical point of view, there is no direct evidence of subcontracting. Although various arrangements with Wyoming ranchers were apparently discussed and considered, this Board has no way of knowing if any arrangement was made. The organization failed to meet its burden in this case and thus its claim must fail.

A W A R D