"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Wheeling & Lake Erie Railway Company (Vf&LE):

Claim on behalf of S.F. Smith, G.J. Remenaric, R.A. Reynolds, J.J. Gresh, and C.H. Morgan II for payment of 120 hours each at the straight time rate, account Carrier violated the current Signalmen's Agreement, particularly the Scope Rule, when it used a contractor to install a railroad crossing protection system at Madison Avenue in Canton, Ohio, between August 12 and September 6, 1996, and deprived the Claimants of the opportunity to perform this work. General Chairman's File No. 231/960917A. BRS File Case No. 10395-W&LE(S)."

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

The five named Claimants in this dispute were regularly assigned to various positions on the signal gang headquartered at Brewster, Ohio, during the time period covered by the claim. The dispute centers around Carrier's use of a private contractor to install a highway grade crossing protection system at Canton, Ohio. The installation was made in compliance with an order of the State Public Utilities Commission which contained a stated completion time.

The Scope Rule of the negotiated Agreement between the parties states in its preamble as follows:

This agreement governs the rates of pay, hours of service and working conditions of all employees engaged in the construction, reconstruction, removal, reconditioning, installation, reclaiming, maintenance, dismantling, boring, digging, trenching, repairing, inspection and testing, either in the signal shop, or in the field of the following:"

"L. This Scope shall not prohibit the contracting with outside parties for the first installation of any interlocking plant, any automatic signal system, and centralized traffic control system, or any car retarder system provided the following:

(1) The Carrier shall not contract out daily maintenance and

repair work of the systems covered by the Scope.

(2) With respect to signal system work that is contracted out, BRS members will be utilized when the final connections into live signal system are made.

(3) The W&LE and the BRS General Chairman will meet and discuss contracting out projects before a contract is let for installation or construction work performed on the W&LE.

any BRS member is on furlough.

(5) That highway grade crossing protection can not be contracted out except when it is not possible with the existing manpower to comply with a public service order.

By order dated August 3, 1995, the Public Utilities Commission of Ohio issued construction authorizations for several crossing protection systems including the instant project.

On April 29, 1996, Carrier notified the Organization of its intent to use a private contractor to perform the installation here in dispute. The parties met and discussed the situation. The Organization disagreed with Carrier's position on the subject and subsequently initiated the penalty claim which is the subject of this dispute.

At the outset of our determinations, it is noted by the Board that Claimant S. F. Smith voluntarily resigned from Carrier's service effective October 2, 1996. His resignation notice specifically released the Carrier "from any and all claims or liability out of my employment ... ." Therefore, Mr. Smith is not a properly included Claimant is this dispute.

The Organization argued that the Carrier had, over the years, reduced the total work force by attrition and had not maintained the work force which existed in 1991 when the Organization became the representative agent. Therefore, it contended, the absence of Signalmen to do the work here in dispute is a result of Carrier's failure to maintain an adequate work force and such an action is a violation of the Scope Rule.

Carrier insists that the language and intent of the Scope Rule were fully complied with in this instance. It argues that during the time period involved in complying with the P.U.C. order there would be approximately 6,610 man-hours of work required to fully complete the ordered installations. At the same time, Carrier asserts, there were approximately 6,746 man-hours of "other signal installation and/or renewal projects scheduled to be completed . . .." This total workload, Carrier insists, required the use

of the private contractor and such use was specifically permitted by the language of Section "L" of the negotiated Scope Rule.

The case record as presented to the Board contains substantial evidence to support the Carrier's position in this case. There has been no probative evidence presented to support the contention that Carrier somehow deliberately reduced Signalman forces in anticipation of using a private contractor to perform the P.U.C. ordered installation here in question. Rather, the record contains uncontroverted evidence that at the time the contracting out was performed there were, in fact, no furloughed Signalmen. The Organization was informed of the intent to contract. The parties met and discussed the situation. There is nothing in the record to challenge or contradict Carrier's assertions relative to the 6,610 man-hours for P.U.C. ordered installations versus the 6,746 man-hours of "other signal installations and/or renewal projects" scheduled to be performed by the Signalmen. The determination to use the private contractor in this situation was permitted by the specific language of the negotiated Scope Rule. Therefore, the claim as presented is denied.