Form 1





                                      04-3-00-3-620


The Third Division consisted of the regular members and in adition Referee ergo R. Newman when award teas rendered.

 TIES TO DISPUTE:
STATEMENT OF CLAIM:.
(Brotherhood of Maintenance of Way Employes

 (The Burlington Northern and Santa Fe Railway Company ( (former Burlington Northern Railroad Company)

 "Claim of the System Committee of the Brotherhood that:

    (I.).' The Carrier violated the Agreement hen it utilized outside forces to perform Maintenance of y work (cut up, load and haul rails in the vicinity of Burnham, Montana on arch 16, 1999 (System. File - -699-LI11-99-041 ).


    The Carrier violated the Agreement hen it utilized outside

    forces to perform Maintenance of ay work (cut up, load and

    haul rail) in the vicinity of Shelby, Montana n arch Sand

    1,1999 (System File B- -670-LI11-99-0419.


~ ~ The Carrier violated the Agreement n it utilized outside
 forces o perform Maintenance of ay work (cut u, load an
    haul rail) between n Blackfoot, Montana and Shelby, Montana.

    n y 3, , 5, , 7;1,11 and 1, l (System File


(z)

 () The._ Carrier violate the Agreement a it tii _ outside
    forces to erfor Maintenance Of yor (cut u


                                      l

rail) i the vicinity, Of Blackfoot, Montana On y , l ,11, l
 n 1 ,1999 (System File - - 2-LIll- -.
 Form 1 ward . 37 7
 Paga Docket o. -36374
 04--00-3-620

      (5)

          The Carrier further violated the agreement when it failed to

          provide the General Chairman with an advance riven notice

          of its plan to contract out the aforesaid work s required by the

          dote to Rule Sand Appendix . J


      ()

          As a consequence of the violations referred tin Parts (1) and/or (5) above-, Group Z Machine Operator . IJ. ian, Truck Driver S. . ickum and elder S. . Lusden stall now each be compensated for eight (8) hours' pay at their respective time and one-half rates of pay.


      (7) As a consequence of the violations referred to in Parts (2)

      and/or (5) above; Group Machine e Operator I E. McDonald,

      Truck Driver . . Pettier and elder . . edigh shall

      now each be compensated for sixteen (16) hours' pay at their

      respective time and one-half rates of pay.


      (8) s a consequence of the violations referred to in Parts (3)

          and/or (5) above, Group 2 2 Machine Operator J. E. McDonald,

          Truck Driver . . Pettier and Welder D: . Pre o shall no

          each a compensated for sixty-four (64),hours' pay at their

          respective time n one-half rates of pay.


      (9) As a consequence of the violations referred to iParts (4)

      and/or (5) above, Group acme Operator J. . McDonald,

      Truck river . . t. Stoddard and elder . . Pre o shall

      o each be compensate for for (40) hours' ay at their

      respective time and one-half rates of pay."


FINDINGS:
      T Third f t Adjustment ar , u n the hole mall the

'd find
 eve encs that:
 Form 1 Page 3

 wr .377
 Docket o. -36374
 0®3-0-3-

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the all Labor Act, as approved June 21,1934.


This Division of the AdJ°ustment hoard has jurisdiction over the dispute
 involved herein. i

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


This case represents the consolidation of four separate claims y the Organization protesting the. Carrier's contracting out of rail recovery work at different locations on the Montana Division on different dates without prior notice. bile the claims are virtually identical, thereby permitting the hoard to properly deal with them through consolidation, such procedure results in an extremely voluminous record that is difficult to read, and which may better a dealt with y the parties through an agreement to pursue a pilot case and hold others in aeyance pending the outcome. Consolidation of similar but not identical cases creates a lengthy and tiresome process of wading through the record to assure that each case is given thorough consideration.


The -record establishes that the Carrier and Carl Weissman Sods (herein C WS) entered into an Agree ent n February 20, 1997 whereby C WS would purchase and remove miscellaneous unsorted scrap, slag, T , frog inserts and rail at four named locations on the Montana Division. This Agreement was extended by supplement dated apteeter , 1997 to numerous additional locations on the Montana Division. The terms of the Sale Agreement specify that it is to be o n "as is, where is" basis, authorizes C WS o enter the Carrier's property to isatle and remove the material, and includes a provision for S to furnish roll-off containers t0 a lie y the Carrier's forces for C WS removal according to instructions

Section Foremen at each location. There is o dispute that on the claim dates such rail was cut up aremove fro the Carrier's property y other than Erepresented employees. Statements fro two Carrier supervisors indicate that C S removed purchased materials fro the Carrier's right-of-way t the noted locations in 1997 and 199 under these Agreements without rest from the Organization, and that the subject matter f the instant claims is alurc aced

For 1 Award 0.37270
 Page Docket o. -36374
 04-3-00-3-620

 material finder the Agreement sold "s is-where is" and removed by C in the spring of 1999.

      The Organization's on-property correspondence relies upon an article in the

Carrier's Engineering Newsletter dated February 25,1999 referring to its 1999 ail
 Distribution Plan as identifying "who and when all rail is to a picked up either by a
 Rail Pick-Up Train or disposed of by a Contractor'' as evidence that the work in
 issue was contracted out. It also references a September 26,1970 Agreement, which
 was not made a part of the record, as excluding rail from its terms allowing an
 outside concern to enter the right-of-way and pick up small scrap, which the
 Organization asserts is proof, in conjunction with the language of the Scope Rule
 and Rule 55, that reservation of this work was intended by te parties. The
 Organization takes issue with the Carrier's contention that the rail was sold "as is
 where is" asserting that the 1997 Purchase Agreement with C does not cover all
 of these locations or these instances, because employees were not used to load C
 roll-off containers, as required therein. The Organization's argument focuses on
 both the reservation of this work to E-represented employees, the fact that
 such employees customarily perform this type of work, and the admission that the
 Carrier failed to give prior notice of its intent to contract out the work as required
 y the Note to Rule 55 in support of its claim for monetary damages for lost work
 opportunities, citing numerous prior cases exemplified Third d Division Awards
 19924, 2033 , 20412, 20633, and 21534.

 the property and before the oar, the Carrier argues that it engaged in no contracting out transactions requiring advance notice to te Organization. It asserts that each instance of alleged contracting noted in these claims was the removal of scrap rail previously sold under its "as is, where is" Purchase Agreement with C S and within its boundaries, consistent with the manner in which it sold and removed scrap rail in 1997 and 199 without protest from the Organization. The Carrier contends that prior precedent establishes that removal y a it par f goods sold to it ors n m'as is, where is" basis does not constitute contracting under the Agreement and is not encompassed within the scope clause, citing Public L
 oaro. 476 , Award 2; Third Division Awards 30224 and 30637. The Carrier notes that the Organization faileto identify the name of any contractor used t remove rail on the claim dates. It avers that the 197 Agreement does not reference scrap rail, as not show to be sine and applicable to this territory, an has been
 Form 1 Award . 7270
 Pga 5. Docket o. -36374
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overridden by Appendix of the September 1, 19 2 Agreement which fails to incorporate it within the current Agreement.


In addressing the Organization's' argument that this work has been customarily performed by B E-represented employees and is reserved to the

under, the Agreement, the Carrier asserts that the Organization failed to meet its burden of proving that its employees have performed this work on a system-wide basis to the exclusion of others, the burden it must meet on this proper under the language of this Agregiment, ching Public Law. Board o. 4144, Award 13; Public La Board o. 3460, Award 67; Public Law Board No. 2206, Award ; Third Division Awards 3393, 20640 and 16640. Before the Board the Carrier argues that, t best the Organization resented n irreconcilable dispute of fact that st result id dismissal of the claims. Public Law Board No. 5405, Award 1 ; Public Law Board No. 3460, Award 7; Third Division Award 32942.


      A 'careful review of the record convinces the Board that the Organization


failed to sustain its burden of proving that the Carrier impermissibly contracted out. the disputed work in this case. It did not effectively rebut the evidence proffered to
 establish that the instances of rail recovery protested in these claims were a result of
 the "as is, where is" Sale Agreement between the Carrier and C WS that a been in
 effect since February 1997 and under which similar scrap rail had been removed
 fro the Carrier's property by other than -re resented employees in 1997
 and 199 without protest. Where rail and other aerial being re ovefrt
 Carrier's right-of-way is the subject of n "s is, here is" sale, it is s no longer the
 proper of the Carrier and work associated with it does not fall l within the Scope of
 the Agreement. Because the removal of the scrap rail in issue in these cases b

does not constitute contracting out y the Carrier, there is no notice rwire n hviolation f the provisions the Agreement. Public Law Board No. 4768, Award

24; Third Division Award Based. upon is finding, the o neenot
 address the Organization's of work argument, the numerous cased it
 relies upon t dot l i"as. is, where is" " purchase agreements, or the
 Carrier's exclusivity contention..
 Form 1 Award o. 7 70
 a Docket o. -36374
 04--00-3-2
 Claim denied.

                        ORDER


This Board, after consideration of the dispute identified above, hereby Orders that n Award favorable to the Cliant(s) not be made:

                      NATIONAL L JUST LROAD ADJUSTMENYBOARD

                      y Order of Third Division

aced at Chicago, Illinois, this 5th day of ovember. 2004.