Form 1
NATIONAL RAILROAD ADJUSTM[ENT BOA-RD
 I

 r . 7 t . - __

 The Third Division consisted of the regular members and in addition Referee Elliott H. Goldstein when award was rendered.

TI DISPUTE:


STATEMENT °

"Claim of the System Committee of the Brotherhood that:
orgies s to perform routine Maintenance of Way work of
 cleaning the right of way of ties and debris between Mile Posts
 1. o. . tracks t
 Subdivision n e Mile st 1 t .
 track t s e Subdivisions i t
 s Division commencing t , 1
 continuing (System File W-9952-161/1214535).

 (2) Agreement was further violated e t Carrier failed t




a consequence f violations ref i arts (I

 and/or (2) above, Roadway Equipment Operators L. E. Loya,
 is n cries . . Callan . .t
 shall now each be '***allowed an equal proportionate share of
 a hours r y e outside contracting c s
 described i this claim, at their respective y Equipment
 Operators and Truck Operators Straight Time and Overtime






FINDINGS:
The Third d 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 iut are respectively carrier and employee within the meaning of the Railway Labor Act, approved June 1,1 .

involved Parties to si dispute e were given due notice of hearing thereon.

 n February , 1 , the Carrier served a -day notice f its intt
 contract work for t calendar y1 . Entitled "Service . 1 ," the
 notice identified the locations at which the contracting would be performed as
 "Various locations system." it respect tt specific o
 performed, the Carrier identified the work as "Furnishing labor and equipment
 for pickup and is f used n railroad ti i s
 production tie gangs."

 On February 9, 1998, the Organization objected to the Carrier's position on
 grounds that the notice faile to cpl it precise requirements f l
 n the December 1, 1 Letter oUnderstanding. According, t
 Organization, the notice as efficient in that it s merely a " lankt" notice,
 substantially lacking i specific information. The Organization furt
 ontd that the r t issue performed y the Carrier' a
 Equipment Operators n is contractuall reserved to them under Rules 1, 2, 3, 4, 5,

 9 and 1 e current According t t r , ,tic
 conference, via telephone, to discuss the planned subcontracting. By letter dated
 March 2, , the Carrier fir t e r t contracted involved
 6` i® second ties,"a sate that Organization
 Form 1 Page 3

 Award No. 37572
 et . -

n 66updated gang schedule." With respect to the four contracting notices
 apparently discussed that ate, including Service, Order No. 8419 pertaining to
 this case, the Carrier defended its decision to contract out the work of removing the
 used tis runs that is consistently subcontracted s i t s
 and it lacked the necessary equipment to properly accomplish the work.

 On-- -October 29, 1999, the Organization filed the instant continuing claim,
 llin tat, , beginning on September 1, 1999, four employees of a contractor, Jack
 nn, cleaned t right-- ca ties o debris Mile Posts
 1.00 . (on Tracks 1 within the Omaha Subdivision) and between Mile
 osts 11 Trac a Columbus n ears Subdivisions.
 The
 Organization asserted that the work performed by the contractor's employees
 involved the use of equipment normally operated by the Claimants, and that such
 work included "piling and loading scrap ties and debris"' in conjunction with the
 Carrier's ti l .

 n December 3,19 , Carrier denied t claim for vario reasons. t
 essentially asserted that the disputed work has been "customarily and traditionally"
 subcontracted, and that the Organization could not demonstrate that the Claimants
 possessed exclusive rights to the work, given the general nature of the Scope Rule.
 addition, the Carrier contended that the claim was I excessive because the
 Claimants did not incur any flnancial loss, and such earnings loss was never proven
 by the Organization.

 its s April 13, 2000 denial of the Organization's February 18, 2000 appeal,
 t airs sly r that the cli "vague" t s t
 locations, dates f t alleged violations. r i the claim handling
 process, the Carrier fut econtended tthat a October 2 , 1999 clai
 untimely case, according to its records, the contractor had been working "well
 before" the September 1, 1999 initial date of claim.

 Regarding the its, the Carrier asserted that, on April 6, 19989 it notified
 t Organization its intent t " ize outsdispose iders f removed ties."
 The
 Carrier s s at contractor 1 receiv "f ownership f t
 removed they removed r track." According t Carrier,

April ,1 response, e Organization at t "even there conference" the Organization "could not enter into an agreement with the
 Carrier." a Carrier maintained t r letter -
 Form I Award No. 37572
 e Docket . -

"courtesy notice," and vas not the initial 1 -day notice as trganiztion contended.


The Carrier furthermore argued, in that same April 1 , 000 letter, that the ties ere sold on n "s is, where is" basis and, contractually, "no notice s even required." According to the Carrier, the issue of whether te Carrier has the right to dispose of proper on "is, where i" basis, without any ensuing violation of the cope Rule or Rule , has been well-settled in the Carrier's favor. In support of its position, the Carrier cited Third Division wards 295 , 29 1, 30216, and 30220, among others.


The recor shows tha, on October 17, 2000, the parties discussed the clai i conference, n the Organization subsequently requested a cop f the "s is, here i" contract. n January , 0 1, the Carrier sent the Organization statement from is Shade, of de Railroad Services, and signed coy of te "Contract for Work or Services,` dated ay 1,199 , between the Carrier and Shade Railroad Services.


The Carrier emphasized tat the above documentation s conclusive proof tat the Carrier l the ties to dila ices on an " i, ere is" basis. According t the Carrier, Shade's statement confer that c Munn,

subcontractor of Shade Railroad ic, performed no service n the
    Omaha

    ivision, and that neither Sae any of its contractors d performed

any work on the Columbus Subdivision, between Mile Posts 123 and 14 during e
 claim period identified Hence, eve those serious factual errors, t clai
 old bisiss, the Carrier stressed.

The Board creullsuie the extensive factual record an t positions advanced y both parties. Initially, a fi that the clai as originally presente

contains no rocerl defect warranting its dismissal y the Board. Fro our revie f the claim, it is clear that the Organization identified the contracting transaction with sufficient specificity, despite its reference to Jack n as e contractor, instead ae Railroad Services. Thus, e conclude fro our revie

f the above correspondence f recor that the claim as sufficiently specific t the
 outset an contai information r the Carrier to investigate it and
 repare response. e furthermore find tat t claim as t untimely, given the
 October , 1999 claim file t n t beginning claim ate to

r

Page 5


        r

Docket No. MW-36530
 0__01_-

 ete her 1, 1999. Therefore, the Carrier's request that the Board iisthe claim without regard to the merits is dnie, a rule.

      Turning to the merits, theoust considers whether the Crrier

established its affrmative defense that the ties were sold on n "as is, where is" basis
 in light the "Contract for Work or Services," date y 1, 199 , between the
 Carrier and Shade Railroad Services. From our revie of tht document, find
 that, s the organization pointed out in its Jana 9, 2001 letter, Section 1(),
 ature and Location of the Work or Services, clearly stated that the oo b
 performed by the contractor was "for providing labor and equipment for ickup
 and disposal of used (second hand) wood railroad ties . . . in the States of Nebraska
 and ass . . . ." Section (A ), Compensation, specified that ... the Railroad will
 w ,ay to the Contractor 'for work actually erformed by the Contractor at the
 Contractor's unit rates set fort in n Schedule of Billable Service Items.
 (Emphasis added.)

 Furtermore, the " esritin f o," contained in the "Schedule of
 illable Services Form," confirms that the Shade ailroicas
 "rovi (e) labor an equipment for pickup and disposal of use (second n) woo
 rilr ties or near various Thus, i. is clear h the "s i, where is"
 contract purportedly the heart of this claim s not the typical sales contract.
 Rather, it ears to have e been an agreement reflecting the Carrier's intention to
 pay the contractor to perfor the clean-up and removal the use railro ties,
 work which the Claimants have performed in the past, are convinced, given h
 available precedent. See, for r example, Third Division Awards 30063 and Award 14
 Public L Board 554 .

 The terms of the above agreement between a Carrier an a Railroad
 ervices thus fail to support the Carrier's affirmative defense regarding the
 existence f boa fide "s is, where is" sales agreement, e conclude.
 Consequently Third Division Awards 242 , 55 , 1, 3 21 an 3022 ,
 supporting position that work performed y contractor pursuant t
 n "s i, where is" contract sale s of constitute e an improper subcontracting Of
 work, are wholly inapplicable t the instant where the factual circumstances
 lc than a sale ti contained i above contract.

    With ct t Carrier's alternative position tat t disputed to i an with lan t e11, 1 1 t

r

Page 6


Award No. 37572 t . -
      -- 1--


1J Understanding, given the facts of record, the Board must disagree. Contrary to the
 rrier's s contention, there is no evidence in the record to support-its assertion that
 tics e concerning Service Order No. 8419 was sent to, the Organization prior to
 t effective date co tract. i i
 evidence April ,1 notice, i it submit a copy of t Organization's
 supposed response, Given t 1 c oroof, the t accept t t
 Organization's position that t operative notice oissued until February 2",
 Pursuant o that finding, e conclude. t y , 1 tie, t
 only 15-day notice made part of this record, cannot be construed as timely. Hence,

 with sect this contracting transaction,, the Carrier, failed satisfy procedural, ul, requirements of Rule 52 and the , December 11, 1981 Letter of
 Understanding, we also conclude.

 above, and i i ti i
 absence of a controlling "as is, where is" sales agreement, and also where no timely
 notiflcation was shown to have been issued, the Carrier failed to shoulder its burden
 of providing probative evidence in support of its asserted two-pronged affirmative
 defense, size. thus rule that, for all of the foregoing reasons, the
 inclaim stant t sustained.

        iAdditionally, given acts and circumstances underlying ie ft s,


e Board rules t t t 1 is indeed suffered t opportunity are entitled to compensation for that loss. The parties are directed to Jointly
 undertake careful review t records tai e e aces a s e
 y either ices e f its subcontractors r e r
 picking up used wood railroad ties at the locations identifled in Parts (1) and (3) of
 the claim. e to t t records may reveal that no work was performed by any
 contractor at certain locations on the Columbus Subdivision, as the owner of Shade
 Railroad Services asserted, without rebuttal t Organization. Hence, the
 Claimants would not be entitled to any hours worked on the Columbus Subdivision
 if the joint records check conflrms the information contained in the January 5, 2001
 attar r is e.

      Given 1 ss i experienced y the Claimants,

    the

    e y requested herein iappropriate, emphasize. . See, specifically

on-property Third Division Awards 37315 and 37316 which recently affirmed the
 y c correctlyj
 r e

    Award No.. 37572

Docket No. MW-36530
 ®®1®a

 rove claims inappropriate subcontracting, i circumstances si il , i
 identical, to this 'Claim, do not constitute an improperpyramiding of claims.

 AWARD
Claim sustained in* accordance with the Findings.

 ORDER
This Board, after consideration of the dispute identifled above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make 1he Award effective on or before 30 days following the postmark date the Award is transmitted t parties.

            NATIONAL RAILROAD ADJUSTMENT BOARD i Division


.Dated at Chicago, Illinois, this 24th

 t
                  CARRIER MIEM[BERS'DISSENT


THIRD DIVISION AWARD 37572, DOCKET MW.36530

(REFEREE GOLDSTEIN)


After a thorough review of this Award, it is *atent that the Referee erred in sustaining the Organization's claim;


First and foremost, there was a definite procedural violation on the p of the Organization that the Referee erroneously ignored. The work by a Contractor on the Subdivision, as shown in the on-property record, commenced on August 1 6,1999. This was later acknowledged y the General Char an in his letter of Janua 9, 2000; however, the Organization did not submit a claim until October 2, 1999, well beyond the sixty-day time limit period specifically provided for in the Agreement. The Carrier introduced in the handling, of this claim, three on-property Third Division Awards, 30267, 31043, and 28826, that supported its position that this claim was barred by the time limits. There are a substantial number of Awards finding in a like manner. It is hardly new issue. Yet the Referee, with no explanation whatsoever, merely wrote:


    " e furthermore find that the claim was not untimely, given the October 2 , 1999 claim filing date and the beginning clai date oeptember 1, 199 . Therefore, the Carrier's request that the Board dismiss a claim without regard to the merits is denied, we rule."


    It is impossible to understand how the Referee can ignore the advice of the owner of the f

(Shade Railroad Services) in her statement that work commenced on August 1 6,1999. Yet, based on that sane statement the Referee expanded the remedy of the claim.. In rendering his decision the Referee imposed an obligation on the Carrier to research not only the subcontractor who was being claimed against (Jack Munn) but also found the Carrier is now liable for any and all subcontractors Shade Railroad Services may have employed. If the Referee was to base his decision on th

statement fro the owner of Shade Railroad Services en he should have used the entire statement in aldng his dete 'nation and found the time limit defect.


Secondly, the Referee has held that the claim was not a"as is where is" type of transaction. n page ?3 of 24 of Carrier's exhibit "-9" tire terms clearly stated that


    "All material released from proiects during the term of this agreement shall become the exclusive property of the Contractor at the time that the material is removed fro the track structure,"


ased upon a reading of the Award it appears that the Referee never took this language into consideration, In its submission, the Carrier addressed the appropriateness of the Awards concerning bartering which should have also been considered to be on point in denying the claim. In any event, since the released material was the property of the Contractor, the Referee has now placed the Carrier in the unenviable position of paying, for someone handling its own property.

We consider this Award to be erroneous because the specific language in the Agreement vas not considered hen n Award issues that does not follow precedent it serves to oecan worms and makes way for the Organization to deluge the Carrier and the Board itclaims that were not progressed in the past. It is disheartening that a Referee would not consider the whale record hen the Referee included other possible subcontractors to Shade ailroad Services in formulating a remedy he exceeded the scope of the claim and imposed a penalty on the Carrier. This was beyond the scope of*his authority. While there was attempted mitigation this does not offset e fact the clam should have been dismissed outright for a tine limit defect. For these reasons ire must dissent,

 in . Finer~ut

 *gm- e . Henderson

 Ah~ P. Lange

 'chael . sn

 October 2, 200