NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

The

(1) The Agreement was violated when the Carrier assigned outside forces (PCI, Inc.) to perform routine Maintenance of Way work (operate Caterpillar Challenger tractor to pull rail for installation) with System Gang 9048 working on the new connection track to the Crandic Railroad during the month of August 2004, instead of Roadway Equipment Operator (REO) V. Wheeler (System File UPRM-9596T11407596).

The Agreement was further violated when the Carrier failed to furnish the General Chairman with proper advance written notice of its intention to contract out said work and failed to make a good-faith attempt to reach an understanding concerning said contracting as required by Rule 52(a).

(3) As a consequence of the violation referred to in Parts (1) and/or (2) above, Claimant V. Wheeler shall now '*** be compensated for all hours of work that the contractor employee worked to move the CWR rail, at the applicable REO rate of pay."

Form 1 Page 2

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.

After careful review of the two voluminous Submissions provided by the parties, it is clear that the work of CWR rail pulling was performed in connection with track construction, which was associated with the work being performed by employees of a Consolidated System Gang governed by the main BMWE-UP Agreement. Only the bridge work involved in the overall project fell within the C&NW Agreement. It is further clear that the Carrier provided notice to the General Chairman who administered the BMWE-UP Agreement and they discussed the content of the notice on January 5, 2004, which was more than six months before the contracted work began.

Given the state of the record described above, the Board must conclude that no violation of the applicable Agreement has been established by the available record evidence. Accordingly, the claim must be denied.

Dated at Chicago, Illinois, this 2~