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.
On May 21, 1999, the Organization submitted a claim on behalf of the Claimant asserting that within the Water Service Sub-department a violation had occurred when an outside contractor performed scope protected work. The claim maintains that three men working for MJB Pipeline Construction Company expended 500 man hours in March and April 1999 between mileposts 4.5 and 5.0 of the Oakland District, Western Division, Oakland California, "to install a 2 inch water line, tapping into a 4 inch line, and then continuing the 2 inch line to a waste treatment plant and a car wash." The Organization argued that the Claimant was available to perform the work, which was historically, traditionally, and customarily work performed by BMWE-represented employees.
During the progression of this claim, several issues emerged. The number of hours claimed changed from 500 to 402 without explanation. The Carrier challenged the Organization to identify the specific dates when the work was allegedly performed and received no response. The Carrier further noted that the work was properly contracted out in conformity with Article IV; the notice of intent ivas responded to by the Organization; and the work was conferenced on the property. The Carrier further provided information that this was water services as Form 1 Award No. 36809
part of the "major intermodal yard reconstruction at W. Oakland" and in another notice that "UP water service would be used for any temporary work as needed and as forces are available." The Carrier maintained that it was not obligated to piecemeal out a small part of the very large project. The Carrier also provided substantial evidence of a longstanding practice to contract out this type of work.
After a full review of the record, the Board finds that the work at issue was properly contracted out following notice and conference. Moreover, the water service work and subcontracting records indicate that this was proper practice on this property for the same type of work previously and historically performed by outsiders. The Organization did not challenge this with any evidence of record that in this instance it customarily belonged to the BMWE-represented employees. Nor did the Organization argue against the Carrier's defense that it need not piecemeal the project. Our study of the record includes the notice that water service on this project would use BMWE-represented employees "for any temporary work as needed and as forces are available." While the claim is vague as to the dates the outside contractor performed this work, the Carrier did provide the Organization with a statement that reads, in pertinent part, as follows:
This response lists the Claimant as not available, while the Carrier earlier notes that "the work must be finished in a timely manner."
The Board finds that the Organization has neither perfected its claim with dates and information on the specific Claimant's availability, nor provided sufficient proof to overcome the Carrier's argument that the work was properly performed without violating the Agreement. We find no evidence provided by the Organization to prove the alleged violation. There are no statements from the Claimant that he was available or could have been made available to perform the work of three outsiders to the Agreement on whatever dates or hours they performed the work. Because similar work also performed by BMWE-represented employees has been contracted out. we find no proof in this instance to hold that the Form 1 Award No. 36809