Form 1 NATIONAL L ADJUSTMENT



                                        Docket o. -3399

                                        04-3-00--639


The Third Division consisted of the regular members and in addition 'Referee Gerald E. Wallin when award was rendered.


(Brotherhood of Maintenance of Way Employee ___ TIES TO DISPUTE:

                        (The Purli~ ton Northern and Santa Fe Railway Company g

                  ( (former Burlington Northern Railroad opany)


STATEMENT F CLAIM:
      "Claim of the System Committee othe Brotherhood ta:


        (I.) The Carrier violated the Agreement when it utilized outside forces (Mar-John Track Maintenance, Inc.) to perform Maintenance of ay work (build track, install turnout and bump post) at St. Cloud, Minnesota on the Stables Subdivision ®n November 20, 25, December 1, 2, , and 9, 1997 (System File T- -14 -I 9 --09AE ).


      ) The Agregiment vas further violated when the Carrier failed o

      (

      provide the General Chairman with advance written notice of

      its plans to contract out said work as required the Note t

      Rule 55 and Appendix .


        (3) As consequence of the violations referred in Parts (1) and/or (2) above, Foreman . Baker and ectinen K. R. Koenig an D. . Miller shall each be compensated for an equal and proportionate share of one hundred sixty-eight (168) hours' pay at their respective straight time rates f pay, Group 2 acme Operator . . reitkreutz shall be compensate for fifty-six (56) hours' pay at his respective straight time rate of pay an Group Machine Aerator L. E. fires shall be compensated for fifty-six (56) hours' pay at is respective

Form 1 Award n. 37277
 a Docket o. ®36399
 0-3-0--639
 straight time rate of pay and Group Machine Aerator .
 ttman shall be compensated for sixteen (16) hours' pay at his
 respective straight time rate of pay."

 FINDINGS:

The Third Division of the Adjustment hoard, 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.


Although viewed differently, the basic facts are not in dispute. The Carrier entered into a lease of a portion of its proper with Maier Transport

Warehousing, Inc. ("Maier") dated doer 27, 1997. Maier, in turn, contracted with Mar-John Track Maintenance, Inc. to perform the work in question.


Throughout the handling on te property, the Carrier maintained that it played no part in the contracting of the work. It also provided a copy of its lease with IVIaier. The Carrier's assertion that the work was for the ultimate benefit o

,Maier was not effectively refuted on the property. Moreover, t plat diagram.'
 attached to the lease shows that the track in question brought industrial rail access
 t Maier's warehouse facility and terminated just beyond the west side of its
 building. Thus, the lease does not demonstrate any readily apparent benefit o the
 Carrier or, for that fitter, any business entity other than Maier.

These parties have confronted similar in the past. Award 12 Public Law oar o. 476 addressed nearly identical issues that arose in 1. The record in this case demonstrates that the disputed ark as performed on property that as genuinely leased to Maier and that the work as for the exclusive benefit

Form 1 Award No. 37277
 Page 3 Docket . 363
 04®®0--

 aier and not the Carrier. While the Carrier retained title to the property and degree of control of its use, the instant record does not establish the level f benefit or control necessary to bring the work within the scope of the Agreement. Accordingly, the Carrier was not required to provide notice in connection with the work: See Third Division Awards 3704 and 32319, and Awards cited therein.

 Given the foregoing discussion, a do got find the record the sufficient to prove that the Agreement was violated.

                        AWARD


      Claim denied.


                        ORDER


This oar, after consideration of the dispute identified above, hereby orders
 that an rfavorale to the Claimants) not be e made..

                        NATIONAL RAILROAD ADJUSTMENT BOARD y Order of Third Division


Dated t Chicago, Illinois, this 5th ayNovember .2004.