THIRD DIVISION

(1) The Agreement was violated when the Carrier assigned forces (Harry Carlyle Excavating) to perform Maintenance of Way and Structures Department work (ditching and right of way cleaning) in the vicinity of Mile Post 250 on the Ayer Subdivision on March 31 and April 1, 200$ (System File D0852U-204f 1502$22).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with an advance notice of its intent to contract out the aforesaid work and failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the use of its Maintenance of Way forces as required by Rule 52 and the December 11, 1981 Letter of Understanding.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants S. Braddock, R. Brown and D. Ehrhard shall now each be compensated for fifteen (l5) hours at their respective straight time rates of pay and for three (3) hours at their respective time and one-half rates of pay."

This Division of involved herein.

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

There is no dispute between the parties that in November 2007 there was a mudslide that flowed onto the Carrier's property that came from adjacent property. The Carrier Manager contacted the property owner who apologized and said he would clean it up. This claim concerns outside forces (Harry Carlyle Excavating) performing the work of ditching and cleaning the right-of-way at/near Mile Post 250 on the Ayer Subdivision because of the mud and debris from the adjacent property. The contractor used three employees who operated a front end loader, excavator, and skid loader on March 31 and April 1, 2008.

It is the position of the Organization that the work in dispute has customarily and traditionally been assigned to and performed by BMWE-represented employees under Rules 4 and 8 of the Agreement and is protected by the Scope Rule that is specific in nature. It further argued that the Carrier violated Rule 52 - Contracting and the good faith obligations set forth in the December 11, 1981 Letter of Understanding. Lastly, it argued that no notice was served on the Organization concerning the work and on that basis alone the claim should be sustained. It concluded by requesting that the claim be sustained either procedurally and/or on the merits as presented.

It is the Carrier's position that the Organization failed to meet its burden of proof to show any contractual violation occurred. It argued that in the instant dispute it did not pay for the work to be done, but instead the owner of the adjacent property from where the mud and debris slid on the Carrier's property arranged for its removal. In its letter of September 26, 2008, it stated in pertinent part:

For the same reasons expressed in Third Division Awards 40922 and 40923, the Board has determined that the December 11, 1981 Letter of Understanding has not lost its applicability and the Organization is not required to prove exclusive reservation of scope covered work when the dispute involves the assignment of work to outside contractors.

The thrust of the Carrier's argument was that the work associated with the ditching was not under its control because the mudslide came off of a neighboring field onto its toe path and the mud and debris was the property of its neighbor and his responsibility to remove because he retained ownership, whereas the Organization countered that argument by stating that it did not matter who owned the material that invaded the right-of-way as that did not give the Carrier the right

to shed its obligation for maintaining its own right-of-way, which was reserved to being done by BMWE-represented employees.

The parties offered various Awards for the Board's consideration that, according to each, should resolve the dispute in their respective favor. A sampling of the Awards offered by the Carrier for the Board's consideration included Third Division Awards 39388, 40282 and 40817. Award 40817 stated, in pertinent part, the following:

"It was effectively undisputed in the record that the fencing in question was installed on property that was leased from the Carrier by the local municipality. The local municipality hired the contractor to install the fencing for its own purpose. Moreover, the Carrier does not own or have responsibility to maintain the fencing." (Emphasis added)

Award 39388 ruled as follows:

"The Carrier points out that the work in question consisted of seating benches installed for the benefit of the Village of Cary, Illinois, and the Commuter Rail Division of the Regional Transportation Authority (Metra) . . . .

The Board reviewed the record. We do not find that, under the circumstances, the Carrier had any control or authority . . . ." (Emphasis added)

The logic and reasoning of Award 40282 was based upon the prior ruling of Third Division Award 31013 that determined the following:

"The determinative issue is whether the disputed work of installing the pipe was contracted out under Carrier's control. This Board has consistently held that where work is not performed at Carrier's instigation, nor under its control, is not performed at its expense or exclusively for its benefit, the Organization cannot claim improper contracting out in violation of the Scope Rule. Third Division Awards 23422, 20644, 20280 . . . We find no evidence that Carrier instigated or retained sufficient control over the disputed work

performed . . . or that it was performed at Carrier's expense _or exclusively for its benefit. Third Division Award 26082 . . . ." (Emphasis added)

"Thus, the work performed by the landowner clearly inured to the benefit of the Carrier." (Emphasis added)

One of the recurring themes to the aforementioned Awards "is that if the work was not exclusively done for the benefit of the Carrier the Organization cannot prevail." However, in this case the exclusive beneficiary of the contractor's work was the Carrier, as its right-of-way was cleared. With respect to the Carrier's contention that the disputed work was tantamount to an "as is, where is" sale that argument is not persuasive in this instance, nor is its argument that because it did not pay any monies for the contractor's work it is relieved of any responsibility for having allegedly violated the Agreement. The Carrier had it within its ability to advise property owner Klinker that it was going to clear the mud and debris after

further indicates that the mudslide occurred in September 2007 and was not cleared until March 31 and April 1, 2008, which substantiates there was no emergency conditions. The lack of an emergency coupled with a showing by the Organization that there was a likely probability that the work in dispute was customarily performed by BMWE-represented employees necessitated the serving of a notice.

The Board finds and holds that because no notice was served and the work in dispute was done for the sole benefit of the Carrier, the Agreement was violated. The Claimants are to be compensated as requested in Part (3) of the claim as there was a showing of lost work opportunities.

AWARD