On the dates set forth in the claim, the Carrier used the services of a contractor to remove and dismantle Track Nos. a and 12 in the Carrier's Yard, South Plainfield, New Jersey. In the performance of its duties, the contractor utilized a front end loader, a cherry picker truck and six employees.

The Carrier defended the claim by asserting that the tracks were sold to the contractor on an 'as is, where is' basis and the purchase contract made the contractor responsible for dismantling the material. Therefore, according to the Carrier, because it had sold the material, the work did not come under the Scope Rule.

Examination of the agreement between the Carrier and the contractor shows that the materials were sold to the contractor on an 'as is, where is" basis. In similar circumstances, this Board has held that because of the sale of the material in such a fashion, 'the work was not contracted out.' Third Division Awards 28615, 28489, 28488 and 24280. That authority is persuasive.

The Organization argues that on the property it requested a copy of the sales contract between the contractor and the Carrier and did not receive the same. Pointing to authority such as found in Third Division Award 28430, the organization argues that the Carrier cannot now produce the sales contract and rely on its terms. As discussed in that Award, the Organization is correct that failure to produce a sales contract as requested on the property precludes this Board from later considering its terms. But, the record in this case shows that by letter dated May 17, 1989 (seven months before the matter was brought to this Board), the Carrier advised the Organization that ' · a copy of the contract/lease to Midwest Tie Sales is available in our offices for your inspection, should you so desire.' Under the circumstances, the organization cannot argue that the Carrier did not produce a copy of the contract on the property so as to bring this case under the rule discussed in Award 28430.

AWARD