The Third Division consisted of the regular members and in addition Referee Patrick Halter when award was rendered.

(1) The Agreement was violated when the Carrier assigned outside forces (Belger Cartage Services, Inc.) to perform Maintenance of Way and Structures Department work (crane operator work) at Bridge 171.93 on the St. Joseph Subdivision beginning on May 23 and continuing through June 9, 2006 [System File C-06-C100157/10-06-0280(MW) BNR1.

(2) The Agreement was further violated when the Carrier failed to provide the General Chairman with a proper advance notice of its intent to contract out said work or make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces as required by Rule 55 and Appendix Y.

(3) As a consequence of the violation referred to in Parts (1) and\or (2) above, Claimant R. Anderson shall now be compensated for one hundred four (104) hours at his respective straight time rate of pay and one and one-half (1.5) hours at his respective time and one-half rate of pay and Claimants L. Watson and C. Smith shall

This Division of involved herein.

"As information, the Carrier plans to contract specialized equipment with operators and oiler to assist Carrier forces with bridge renewals at various locations on the St. Joseph Sub-Division. The contractor will provide a 250-ton off-track crane with operator and oiler that will be used to remove existing bridge spans and place new spans each weighing approximately 63,000 pounds. In addition to removing and setting bridges spans, the off-track [crane] will also assist with driving piling due to space constraints. Carrier forces will perform remaining bridge work. The Carrier is not adequately equipped to perform all aspects of this project, nor does it have necessary skilled forces. The contractor possesses the necessary specialized equipment and skill[ed] forces necessary for a successful completion of this project. The bridges to be renewed are as follows:

St. Joseph Sub-Division [Line Segment 30001

Bridge 126.10: Anticipated Start Date: March 13, 2006

Bridge 171.93: Anticipated Start Date: March 20, 2006

Bridge 185.61: Anticipated Start Date: April 10, 2006

The contracting of the work here involved is consistent with Carrier

policy and the historical practice of contracting out such work[.]"

On July 19, 2006, the Organization filed a claim alleging the Carrier breached "Rules 1, 2, 5, 29, 55, Note to Rule 55 and Appendix Y, but not limited thereto when [it] contracted for men and equipment to work on a bridge renewal project," specifically, "drive piling, remove existing bridge spans and place new spans using a 250-ton off-track crane at Bridge 171.93[.]" In addition to the Crane Operator, the contractor provided two more employees and used a 165-ton off-track crane. The Carrier's bridge derrick delivered all materials to the site; all materials were within the bridge derrick's capability to hoist. The Carrier did not meet any criteria in the Note to Rule 55 and Appendix Y.

On September 1, 2006, the Carrier denied the claim stating it was "out of time limits. Work started on May 22, 2006 (not May 23 as claimed), and the Organization's claim was not received until July 21, 2006." The Carrier reiterated its reasons in the notice and remarked that many of the Claimants worked on the bridge renewal project and all were fully employed.

On October 5, 2006, the Organization appealed and asserted it was timely because the Carrier received it within the 60-day time limit (Rule 42). It restated its arguments as set forth in the claim, noting that it historically and customarily performs this work. The off-track crane is not specialized equipment, because the Carrier has it on the property (with qualified Operators) or can lease or rent one. Carrier forces possess the skills and expertise to perform the claimed work because they built the bridges.

On November 21, 2006, the Carrier denied the appeal on the basis the work began on May 22, 2006, but the claim was not received until July 21, 2006, which is

By letter dated April 3, 2007, the Organization confirmed the conference held on January 30, 2007. It maintains the claim is timely under Rule 42 whether or not the first day (May 22) is excluded or included because it was presented to the Carrier when mailed on July 19, 2006. Other arguments remained unchanged from prior responses. On August 20, 2007, the Organization filed its claim with the Board.

The contractor commenced work on this project on May 22, 2006; that is the date of its invoice to the Carrier. Given the Organization's position in Award 19803 that the claim commences on the initial date contract work begins, the 60-day time limit in Rule 42 began on May 22. According to the Organization, the claim was presented when mailed on July 19, 2006. May 22 to July 19 is less than 60 days. The claim is timely.

The Organization customarily performs this claimed work. Rules 1, 2 and 5 set forth classes of employees within the Bridge and Building and Roadway Equipment Sub-departments (B&B Foreman, Group 1 Machine Operators) required to perform work stipulated to in Paragraphs 1 and 2 of the Note to Rule 55, that is, "work in connection with the maintenance or repairs of structures or facilities located on the right of way and used in the operation of the Company in the performance of common carrier service." In other words, Carrier forces customarily perform work of maintaining or repairing bridges.

The Organization received timely and proper notice. At the time of notice (January 11, 2006) the Carrier planned to contract for a 250-ton, off-track crane. Thereafter it discovered that a 250-ton was not available; it contracted for a 165ton, off-track crane. The Carrier does not own a 250-ton or a 165-ton off-track crane. This is equipment it does not have available.

(07-3-481)