For 1 TI L ADJUSTMENT



                                        Docket . - 6

                                        0 -3-01- -


The Third Division onsisteothe regular embers an in addition Referee Ell lott . Goldstein hen and as rendered.

                  (Brotherhood f Maintenance of Way Employes


    TIES TO DISPUTE,:

                  (Duluth, issae and Iron Range ail Company


,STATEMENT CLAIM:
      " lai of the Syste Committee t Brotherhood that:


      (1) The Carrier violate the Agreement hen it assigned outside

      forces terfor routine Maintenance of Bridge and

      uildin Sub-department work (furnace. aintenance) t the

      roctor Car hop n September n , 1999 (Claim o. -

      ).


          The Carrier further violate the Agreement a it faile t timely properly notify n confer with he General Chairman concernin its intent t contract out the abovereference work as require y Supplement o. 3.


      () s consequence of te violations referre in Parts (1)

          and/or (2.) above, Claimant R . Lambert shall now be

          compensated seven (7) hors' y at the composite mechanic's

          straight i rate of y."


EINDINGS:
The Third f the Adjustment Board, upon the whole record all the
 evidence, fins that:
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      The carrier carriers and the employee r employees i this dispute

are respectively carrier and employee within the a nin f the ail L'abor'Act,
    approved June 21,1934:


      This Division of te Adjustment Board hjurisdiction vedispute


involved herein- Parties to saidiste ere given due notice of hearing thereon.

Accordin to the Organization, n September and , 1999, the Carrier assigned contractor terfor "routine furnace maintenance at the Proctor

o (Building ng No. 168)." The Organization specifically contends that employees of
 t contractor expended seven ours n both dates, "changing filters, tightening
 belts, lubricating and akin minor adjustments to the furnaces t the Proctor Car
 Shop." It asserts that the Carrier's forces have performed "normal furnace
 aintenance in the past," and that the General Chairman's statement providing
 etails oior maintenance and installation or, include i is June , 0
 letter to t a Carrier confirming the claims conference f June , 000, s not
 refute the Carrier. According to trl Chairman:

      ... The contractor performed normal maintenance work that the

      Bridge and Building Department could have done. The

      performs furnace repair and maintenance work all over the

      system. In fact, the just installed a complete furnace n duct

      work t t ales Section. The furnace t the Allen Junction r

      ouse is maintained bthas ell the heari syste t

      i abic. a furnaces in Proctor have been epir

        aintained by the for years ...."


light of the above, the Organization contends that pursuant to Rule 26(c)
 Supplement N. f the Agreement, the work performed y the contractor as
 iscellnes maintenance work" tat accrue y "custom, history a tradition"
 t e Claimant, Department Composite e Mechanic assigned at Proctor.
 s, t Organization avers that, , pursuant to Supplement No. 3(c) of the

 Agreement, a Carrier as required to ivtheral Chairman advance tice f its intent t contract t the "routine furnace maintenance ," and
 For r . 7600
 Page 3 Docket . -36
 05-3-01-3-7

allo hi n opportuni to discuss the matter in conference. The Organization asserts that because the Carrier id not provide the General airman with the requisite notice and conference opportunity, fact which the Organization contends stands urefted in the record, the Board must fully sustain the instant claim.


The Carrier contends that the Scope Rule does not mention heating systems and that y progressing the instant claim, the Organization no attempts to obtain work for which B&B Department employees simply are not qualified. According to the Carrier, the work described by the Organization was "far ore complicated than routine maintenance." It further argues that "an experienced

represente foreman" made the decision to call the contractor given is assessment that there ere no employees available possessed the necessa skills, to service the furnace. Moreover, the Carrier contends that the General Chairman essentially acknowledged that qulile employees were lacking given his statement that,

                                                  `~. . .

Even if the work went beyon that, it is the Company's obligation to have trained people on hand ....

              "


The Carrier emphasized that ioes not consider the furnace maintenance
 work issue here s " iscellaneus mechanics under Rule 26(c,
 Classification f Work. I Carrier's view, such or"is not reserved Bridge
 an Building Sub-department in the language f the Agreement y past
 practice."

The Carrier additionally argued that in order for the Organization t prevail in its burden f proof, it must establish ri a facie case y sin that the Carrier s obligated, Agreement, to assig the maintenance r

employees. 'According to the Carrier; the Scope Rule is general, thus, the Organization must substantially establis that E-represented employees have performed "all furnace repairs and maintenance exclusively." The Carrier further aues that "the facts record demonstrate tat the Carrier s routinely contracte the installation n servicing of furnaces throughout the property'." The

Carrier points to. the Engineer's statement is November 2, 1 clai
 response, as follows:

      " air maintenance as routinely n left t

      skille trades. This is appropriate given a incrsi technology

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applied trnaces that our people o not have the kowlee, experience, or skills to repair. y submittin this claim, it appears that the BMWE is questionin the Foreman's decision on the atter . . . ."

      oreover, the Carrier states that in its February 000 claim nil, the

hief Engineer wrote that the furnaces "are increasingly technical and beyond
 repair or maintenance y those not skilled in the trade. B forces .
 routinely declined to work on furnaces. They have even regularly alongside
 outside vendors on the replacement of furnaces such sin the repair o
 lunchroom."

 Thus, the Carrier stresses that the Organization as completely unable
 show that the work in dispute s encompassed. Rule r that its members
 possessed the skills necessary for the proper performance f furnace maintenance
 r. It argues that because the Organization did not show that the work iScoe
 vere , Supplement . 3 imposed no duty upon the Carrier notify the General
 Chairman before subcontracting the work.

      T carefully studied a factual record, the arguments set fort the


ties an the precedent Awards cite in this current case. Although acknowledge the Organization's burden in this case, e to that the Carrier
 ,expressed its disagreement with a Organization's sweeping contentions in
 generalities f its own, an without any probative documentation. For axle, the
 Carrier furnished seciflc informjo ation support its position that furnace
 maintenance work "has routinely been left to skille trades," if not contractors. T
 certain extent, therefore, the Board does not disagree with the Organization's
 contention that the Carrier did not support its affirmative defense with ersusive
 evidence f its own if the oar as a that far in its analysis. However, the
 Organization's failure first establish rims facie-, case precludes e oar fro
 such fin in or fro sustaining is claim, e rule.

 if the above, t oar concludes that, fro our review f the onproperty record, e true factual situation cannot e distilled fro t record. s, a of that the record lacks sufficient information for the Board ran
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 Award . 7600
 Docket No. MW-36542
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 either sustaining or denial Award'. a rule, therefore, that under the particular circumstances, the claim must be diisse .

 AWARD
Claim

 is missed.

 E

 is Board,. after consideration dispute identified v , hereby orders
 tat an Award fvrlto the i ants) note

 I ADJUSTMENT
 BOARD y Order f Third Division

 to Chicago, Illinois, is n f September