(1) The Carrier violated the Agreement when it assigned outside forces (C&S Salvage Co., Inc.) to perform Maintenance of Way work (dismantling tracks) between Sumter, South Carolina and Florence, South Carolina on the Orangeburg Subdivision of the Florence Division beginning on June 11, 1990 and continuing [System File 90-83/12(90-1072) SSY].

(2) The Carrier also violated Rule 2, Section 1 when it failed to confer with the General Chairman and reach an understanding prior to contracting out the work in question.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Foreman C.D. Polk and Trackmen J. L. O'Banner, E. L. Goodwin and C. Mumford, Jr. shall each be allowed pay at their respective straight time and time and one-half rates for an equal proportionate share of the total number of man-hours expended by the contractor's forces performing the subject work."

Parties to said dispute waived right of appearance at hearing thereon.

Beginning on June 11, 1990, the Carrier assigned eight employees of an outside contractor (C&S Salvage Company, Inc.) to perform work of dismantling Carrier's tracks near Cartersville, South Carolina, on the Orangeburg Subdivision.

The Organization filed the instant claim alleging that such work was covered by the Scope Rule, and the Carrier violated the Agreement by not conferring with the General Chairman and reaching an understanding prior to contracting out the work. The Organization contends that the work of dismantling tracks on the Carrier's right-of-way and/or property is contractually reserved to its Maintenance of Way and Structures Department employees under Rules 1, 2, 3, 4, and 5. The critical language appears in Rules 1 and 2:

to BILL"

SCOPE

These Rules cover the hours of service, wages and working conditions for all employees of the Maintenance of Way and Structures Department as listed by Subdepartments in Rule 5 - Seniority Groups and Ranks, and other employees who may subsequently be employed in said Department, represented by Brotherhood of Maintenance of Way Employes ....

RULE 2

CONTRACTING

This Agreement requires that all maintenance work in the Maintenance of Way and Structures Department is to be performed by employees subject to this Agreement except it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier. In such instances, the Chief Engineering Officer and the General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed.

construction work in the Maintenance of Way and

Structures Department when Company forces and equipment

are adequate and available, it is recognized that, under

certain circumstances, contracting of such work may be

necessary. In such instances, the Chief Engineering

Officer and the General Chairman will confer and reach an

understanding setting forth the conditions under which

the work will be performed. In such instances,

consideration will be given by the Chief Engineering

Officer and the General Chairman to performing by

contract the grading, drainage and certain other

Structures Department work of magnitude or requiring

special skills not possessed by the employees, and the

use of special equipment not owned by or available to the

Carrier and to performing track work and other Structures

Department work with Company forces."

The organization's claim was denied by the Carrier's Division Engineer on October 1, 1990, on the ground that:

"[T]he referenced trackage had been removed from service and the line broken by the Carrier's Maintenance of Way forces which rendered the track dead. You make reference to Rule 2 of the Agreement with specific reference to `all maintenance work'. As you are aware, abandonment of dead trackage is not defined as track maintenance. The track subject of your claim was out of service and no longer a part of the Carrier's operating system: therefore, said work does not accrue to Maintenance of Way employees."

The Carrier asserts that the track in question was abandoned as part of its broader action initiated in 1985 to abandon the entire mainline between Sumter, South Carolina, and Florence, South Carolina. The record shows that on November 28, 1988, the Carrier filed before the Interstate Commerce Commission (ICC) a notice of exemption for abandonment of Carriers' line of railroad between Milepost AK 304.38 at Timmonsville, South Carolina, to Milepost AK 313.43 at Lynchburg, South Carolina. The Carrier's notice stated that no local or overhead rail traffic had moved on the line for at least two years prior to the date of filing. The ICC granted the notice of exemption for abandonment of the line on December 13, 1988. The Milepost for Cartersville is AK 310, which is located in the area for which the ICC granted the notice of exemption for abandonment of track. The record further shows that the track in question had not been used by the Carrier for a period of approximately four years prior to the organization's filing of its claim.

95-3-92-3-199