Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37745
Docket No. MW-36594
06-3-01-3-105

The Third Division consisted of the regular members and in addition Referee Steven M. Bierig when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM:





Form 1 Award No. 37745
Page 2 Docket No. MW-36594
06-3-01-3-105
claimed as compensation for loss of work opportunity suffered
starting on October 11, 1999, continuing until such time as the
contractor employes are removed from the property as the
work claim is considered continuous. Additionally, in an effort
to make Claimants whole for all losses suffered, we are also
claiming that the Carrier must treat Claimants as employes
who rendered service on the days claimed qualifying them for
vacation credit days, railroad retirement credits, insurance
coverage and any and all other benefits entitlement accrued as
if they had performed the work claimed."'

FINDINGS:

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.




The Claimants have all established seniority on the Huntington Subdivision. On the dates involved, the Claimants were all regularly assigned to positions in their respective classes.


This claim concerns the Carrier's sale of its property to an outside party. Scrap rail and other track materials set along the Carrier's right-of-way were sold to an outside concern on an "as is, where is" basis. The Carrier and the purchaser agreed the change in ownership of the material would occur as soon as it was removed from the track. According to the Carrier, under "as is, where is" property status, the purchaser loaded and transported its purchased property, taking it from the Carrier's right-of-way to its own property.

Form 1 Award No. 37745
Page 3 Docket No. MW-36594


Beginning on October 11, 1999, the Carrier assigned outside forces (Cando Contractors) to perform the right-of-way clearing work between Mile Posts 340 and 346 at Baker, Oregon, on the Huntington Subdivision. The right-of-way clearing work occurred behind System Gangs who left materials along the right-of-way. The contractor's employees worked straight time and overtime performing the nonemergency right-of-way clearing work.


The Organization contends that the Agreement was violated when the Carrier assigned Cando Contractors to perform Maintenance of Way work (cutting and general cleanup work related to rail and scrap metal left by System Steel Gangs after a track renewal project). First, it claims that the Carrier did not provide the required adequate notice to the Organization. Second, the Organization claims that it was improper for the Carrier to contract out the above-mentioned work. This is work that is properly reserved to the Organization. Third, the Organization argues that the Claimants should be compensated for the lost work opportunity because they were denied the right to perform the relevant work.


Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that the scrap material was sold "as is, where is." Historically such sales have been allowed and therefore subsequent sales are not within the scope of work reserved to the Organization. Because the work was performed pursuant to said sale, there was no need to give notice to the Organization.


We find that the instant matter qualifies as an "as is, where is" sale and is outside the purview of the Agreement. We note that an "as is, where is" sale is defined in Third Division Award 37104, as follows:



Thus, the rail scrap and other track material at issue in this claim became the purchaser's property and its subsequent removal is not considered contracting out.

Form 1 Award No. 37745
Page 4 Docket No. MW-36594
06-3-01-3-105

Because this was a bona fide sale, the Carrier was not required to provide notice to the Organization. Thus, the Organization's claim over failure to give notice also is denied.


Based on the evidence in this matter as well as the above-cited precedent, we find that the removal of rail, scrap and other material by Cando Contractors was proper. The Organization did not prove otherwise. The claim is therefore denied.






This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


Dated at Chicago, Illinois, this 21st day of March 2006.