"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated Article XV of the September 26, 1996 National Agreement when it contracted out the work of fabricating and installing a catwalk over the waste water treatment plant at North Platte, Nebraska on March 3, 4, 5 and 6, 2003 and failed to afford furloughed Bridge and Building Subdepartment Welder R. A. Redfield the level of protection which New York Dock provides for a dismissed employe (System File C-03XV-10311361195).

(2) As a consequence of the violation referred to in Part (1) above, Claimant R. A. Redfield shall be `. . . allowed New York Dock level protection benefits for a dismissed employee while she has been and is a furloughed/dismissed employee."'

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.

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

The instant claim, which was filed on March 19, 2003, alleges that Claimant Welder R. A. Redfield was furloughed as a result of subcontracting during the period of March 3 - 6, 2003, when the Carrier hired a contractor to build and install a catwalk over a waste water treatment plant in North Platte, Nebraska, in violation of Article XV of the September 26,1996 National Agreement.

The Organization requested the remedy of New York Dock level protection benefits for the Claimants. According to the Carrier, the Claimant was furloughed two months prior to the subcontracting of said work and was not furloughed as direct result of this subcontracting.

Article XV states, in relevant part:

"The amount of subcontracting on a carrier, measured by the ratio of adjusted engineering department purchased services (such services reduced by costs not related to contracting) to the total engineering department budget for the five-year period 1992-1996, will not be increased without employee protective consequences. In the event that subcontracting increases beyond that level, any employee covered by this Agreement who is furloughed as a direct result of such increased subcontracting shall be provided New York Dock level protection for a dismissed employee, subject to the responsibilities associated with such protection."

The Organization argues that Claimant Redfield would not have been laid off had it not been for the subcontracting at issue. It claims that the Carrier failed to

provide the relevant information to enable the Organization to properly ascertain the amount of work subcontracted between 1992 and 1996 in order for it to properly make its claim. It argues that because the Claimant was furloughed as a direct result of the Carrier's subcontracting of the work of building and installing the catwalk, the Claimant is entitled to New York Dock protection benefits.

Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. First, it contends that the Organization's argument regarding the lack of information provided to the Organization was not properly raised on the property and, therefore, cannot be considered. Second, even if said argument was properly raised by the Organization, it must nonetheless fail based on the decision in the United States District Court for the Northern District of Texas, captioned BNSF Railway Co. v. BMWE, No. 4:0'7-CY-071-A (11116/07) in which the Court specifically rejected the same argument that the Organization made in the instant case. In that case, the Court overturned Third Division Awards 36983 and 36984. Finally, the Carrier contends that the Organization failed to meet its burden of proof to show that the subcontracting by the Carrier directly led to the furlough of Claimant Redfield.

After a review of the record, we find that the Organization has been unable to meet its burden of proof. First, it is apparent that the Organization's argument regarding the lack of information provided by the Carrier concerning the 1992-1996 period was not raised on the property and, therefore, the Board will not consider said argument. Beyond said argument, we cannot find that the Organization has been able to prove that the subcontracting of the building and installation of the catwalk over the waste water treatment plant at North Platte, Nebraska, directly led to the furlough of Claimant Redfield. Because the Organization has been unable to meet its burden of proof, the claim is denied.

AWARD