"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Dobbas Construction Company of Newcastle, California) to perform routine System Work Equipment Subdepartment work (utilize crane with operator and helper for the purpose of handling bridge material in conjunction with new bridge construction) at Mile Post 41.3 on the Fresno Subdivision in the vicinity of Roseville, California commencing on April 10, 2000 and continuing through May 4, 2000 instead of Machine Operator T.L. Daugherty and Helper M.J. Giallanza (Carrier's Files 1237133 and 1241772 SPW).

(2) The Agreement was further violated when the Carrier failed to provide the General Chairman with a proper advance written notice of its intent to contract out the work in Part (I) above or make a good-faith effort to reduce the incidence of subcontracting and increase the use off Maintenance of Way forces in accordance with Article IV of the May 17, 1968 National Agreement and the December 11, 1981 Letter of Understanding.

(3) As a consequence of the violation referred to in Parts (1) and/or (2) above, Machine Operator T. L. Daugherty and Helper M. J. Giallanza shall now each be paid an amount equal to the total mnri-hntlrc wnrkPd by thn rlnhhae Cnnetraartinn rnmnoncy forces, which shall be no less than one hundred sixty (160) hours at their respective straight time rates of pay, plus any overtime hours identified after review of contractor's statement

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v~ nuurs with the Carrier. Compensation for this violation is in addition to any compensation that may have been received and shall not be included on the Claimant's regular payroll check."

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, ..,a i...,~7> >nzA a~ apprv'vcu.auaaa. ~i, i~.a-a.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

Claimant T. L. Daugherty entered service with the Carrier on Julv 16, 1984, and holds seniority within the System Work Equipment Sub-department .in the classification of Machine Operator. Claimant M. J. Giallanza entered service with the Carrier on February 1, 1992, and holds seniority within the System Work

The instant dispute arose when the Carrier contracted with Jim Dobbas, Inc. ("Dobbas") under Service Order No. 13706 Roadway Maintenance, to provide fully operated, fueled and maintained heavy equipment to assist Carrier forces in performing work on an "as needed" basis at various locations in California and Nevada. During April and May 2000, Dobbas furnished a 30-ton Hydro crane with

an operator and helper for the handling of material in conjunction with new bridge construction on the Fresno Subdivision.

On Mav 26_ 2nnn_ the (lrvuni7ntinn cnhmittM Plaime rpaarrlina thp wnrlr in

~ _______ __a___~___ __ _ _______» » ,b» - b a 11,11

Rule 1 (Scope) of the parties' Agreement, provides in pertinent part:

"These rules govern rates of pay, hours of service, and working conditions of employes in all sub-departments of the Maintenance of Way and Structures Department . . . represented by the Brotherhood of Maintenance of Way Employes, such as: . . . [p]ile driver, ditching, hoistinLF engineers, steam crane operators . . . steam shovel engineers, cranemen, firemen, and miscellaneous equipment operators."

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Sub-department and the System Work Equipment Sub-department. Rule 3 provides that each occupation within the sub-departments constitutes a class.

"If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the f1PCionnted r-nrPCPnt'atiVP of the rarripr chall nrnmntlv moot with ____e_______ __r__.._______._ .._ ___., .._1111.. _111,1. t..,....t....~ 1111,..., 1111.. him for that purpose ....

Nothing in this Article IV shall affect the existing rights of either party in connection with contracting out. its purpose is to require the carrier to give advance notice and, if requested, to meet with the

.,

General Chairman or his representative to discuss and if possible reach an understanding in connection therewith."

A December 11. 1981 Letter of Underctandina states*

"The carriers . . . will assert good-faith efforts to reduce the

incidence of subcontracting and increase the use of their

aiaai..t.,....cc .._., V..v way r..V_...._ ._ t>__ _._,_ ,

acuaaaaua xcC~ 1 1.U the extent praCtlCilU1C, lnftudlrig the

procurement of rental equipment and operation thereof by carrier

employees . . . . In the interests of improving communications

between the parties on subcontracting, the advance notices shall

identify the work to be contracted and the reasons therefore."

The Organization asserts that the Carrier failed to provide proper notice of its intent to contract out the work in question. It is the Oreanization's position that the Carrier provided only "pro forma" notice in the instant case, and that under the terms of Article IV and the December 11, 1981 Letter of Understanding, the Carrier is required to go beyond such pro forma notice to "good-faith conference dierneeinne "

While the Organization does not explicitly concede that it received notice, it has at least during the on-property handling tacitly admitted that such notice was provided, arguing for instance that "(tjhe focal point of the claim should be the blanket contracting out notice, i.e., Service Order No. 13706." It is apparent from the June 1, 2000 e-mail authored by R. A. Pettigrew, and submitted into the record by the Carrier, that Service Order No. 13706 referred in general terms to having Dobbas furnish heavy equipment on an "as needed" basis at various locations in California and Nevada. Nevertheless, while more specificity might have been desirable, the Board finds that such notice was sufficient to meet the Carrier's obligation under Article 1V and thr DPepmhar t tool T attar nfTT~Ao..c+...,a;...*

Moreover, the good faith required of the Carrier with respect to attempting to reach an understanding with the Organization regarding proposed contracting

conference with the Carrier regarding Service Order No. 13706 which was denied, or that the Carrier failed to participate in such a conference in good faith. The Board finds that the Organization has not proved a lack of proper notice of the Carrier's intent to contract out the work at issue.

In addition, while the Organization contends that the Carrier failed to make the good faith effort to reduce the incidence of sub-contracting that is required by the tprmc of thp DPrnmhPr 11 1987 T.attar of TTnrlnretandino tha nrnan;aa*;nn offered no evidentiary support for its contention. The Organization's naked allegation that the Carrier either owned equipment with which the work in question could have been done, or could have rented or leased such equipment to be used by the Claimants, is insumcieni to prove the Organization's assertion of bad faith in contravention of the December 11, 1981 Letter of Understanding.

In the absence of a contractual reservation of the work, as a matter of wellestablished arbitral precedent, the Organization must show that such work has been customarily and traditionally performed by the Organization's members systemwide, "to the practical exclusion of others." See Public Law Board No. 5567, Award 1. The Organization provided no evidence whatsoever - for example, employee statements - in support of its assertion that its members have customarily performed the work in question, and certainly has not shown that they have performed the work to the exclusion of all others.

In response to the Organization's unsupported assertion in this regard, the

occasions wherein work similar to that at issue here was contracted out. It is apparent from the record, therefore, that the Organization has shown no past practice reserving the work at issue to its members to the exclusion of others. At best, the record shows that the Carrier has had a mixed practice with regard to the assigning of work of the type in question in the instant case.

Furthermore, even if the Organization had succeeded in proving that the work in question was reserved to i·e mamhnr~ :t --ld a1w have hem r ....a s.. ....___ ___ _y__..__.._- .._.. -.._..,° ..,.° ... a..., .....aaav...o, a. ..vuau uaw aau.a. va,a,aa acquiacu tv prove that the work belonged to the Claimants in particular. Neither Claimant holds a position in the Bridge and Building Sub-department that engaged in the new bridge construction project involved in the instant case. The Organization has not submitted evidence in support of its assertion that the work at issue would have gone to the Claimants in the System Work Equipment Sub-department, rather than the senior Crane Operator or other employees within the Bridge and Building Subdepartment.

Having found that the Organization failed to prove any violation of the Agreement, the Board must deny the claim.

AWARD