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

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.

Parties to said dispute were given due notice of hearing thereon.

The Organization argues that the Claimant was a qualified machine operator capable of operating a Tie Handler Crane. Instead of providing the Claimant the opportunity to utilize the equipment to remove cross ties from track, the Carrier hired a private contractor. The Organization argues that such work belongs to the employees by Agreement. It points out that the Claimant was qualified and worked the very Gang where the violation occurred. The Organization argues that on a daily basis the Carrier utilized other Maintenance of Way employees on Tie Handler Cranes (THC) to pick up used ties and move them to stacking areas, while it used a contractor's employee instead of the Claimant on another THC. It argues that the Carrier failed to give proper notice; removed work belonging to the employees; and denied the Claimant work opportunity for which he was entitled.

The Board fails to find an Agreement violation. The Carrier argued that there was a mixed practice on this property and this argument has Award support (Third Division Award 29714). Additionally, we find that the Organization has failed to provide proof that the Carrier lacks a practice of contracting out such track work. The Claimant's qualifications to operate the Tie Handler Crane were challenged by the Carrier as the contractor's THE was "far more sophisticated (technology wise) than the THC's owned by the Carrier." We find nothing in the record or the Claimant's December 20, 1993 letter that indicates he had the ability to operate the THC utilized by the contractor, or any evidence that it was equivalent to those owned by the Carrier. The Organization has failed to prove that the work contracted out by the Carrier was that belonging exclusively to the employees. Part (1) of the claim must be denied.

The Board finds that the Carrier has failed to give timely notice of intent as required by the Agreement. The work began on February 1, 1993. The Board finds that the Notice of Intent was served on February 5, 1993. As such, Part (2) of the claim must be sustained. However, we deny Part (3) of the claim for compensation as the Claimant was fully employed and we can find no evidence in this record of any wage loss suffered (Third Division Awards 31835, 31273).

AWARD