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.
Claimant Y. L. Wheeler established and holds seniority as a Roadway Equipment Operator dating from February 6, 1998. The Claimant, who was assigned to System Switch Tie Gang 9071, was displaced on April 17, but was not released from the Gang until April 23, 2003.
Beginning on Monday, April 21, 2003, the Carrier allegedly assigned outside forces (The Taylor Company) to load used ties along the Carrier's right-of-way in the Council Bluffs, Iowa, Yard. One of the contractor's employees operated a hydraulic boom type crane loading ties onto two rail carts which were subsequently unloaded in a secure area. According to the Organization, beginning on April 21, 2003, the contractor's employee worked in conjunction with Gang 9067 for the same hours and under the same work order. According to the Organization, the Claimant was available for duty on the claim date, fully qualified and willing to perform the aforementioned work, but was not afforded the opportunity to do so by the Carrier.
The Organization contends that the Agreement was violated when the Carrier assigned outside forces to perform Maintenance of Way work (removal of ties from the Carrier's right-of-way). First, it claims that the Carrier did not provide adequate notice to the Organization as is required. Second, it claims that it was improper for the Carrier to contract out the above-mentioned work. This is Form I Award No. 40089
work that is properly reserved to BMWE-represented employees. The Organization argues that because the Claimants were denied the right to perform the relevant work, the Claimant should be compensated for the lost work opportunity.
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. It contends that the ties removed by The Taylor Company were sold on an "as is, where is" basis, which historically has been allowed and the consequent work is not within the province of the Organization. Because the work was performed pursuant to said sale, there was no need to give notice to the Organization. Although the Carrier contends that it was not required to give notice to the Organization, it nonetheless did so. In addition, the Carrier contends that there was a procedural violation in that the claim was processed by the incorrect General Chairman.
After a thorough review of the record, the Board concludes that the instant matter qualifies as an "as is, where is" sale and, therefore, it is outside the purview of the Agreement. See Third Division Award 3?104 wherein the Board held:
The instant sale of ties by the Carrier to The Taylor Company constitutes an "as is, where is" sale. Thus, the ties became the purchaser's property and the removal does not constitute contracting out. Because this was a bona fide sale, the Carrier was not required to provide notice to the Organization.
Based on the record evidence and the above-cited precedent, we conclude that the tie removal performed by The Taylor Company was proper. The Organization has been unable to meet its burden of proof. Accordingly, the claim is denied. Form 2 Award No. 40089
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Clairnant(s) not be made.