CASE NO. 7


PARTIES ) ?ROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) VS.
 DISPUTE ) FORT WORTH AND DEN=R RA=,qAY COMPANY

 STATEMENT Claim of the System_Committee of the Brotherhood
 OF CLAIM: that:
 (1) The Carrier violated the Agreement when, without
 ' prior written notification to and without written
 agreement with the General Chairman, it. assigned
 outside forces to perform track and bridge dis
 mantling work, track and culvert construction
 work and grading work in connection with extand
 ing-the 'Hedley siding' (System Files F-21-80/
 MS-2 and F-22-80/MS-2).
 (2) Because of the aforesaid violation, the Bridge
 and Building Suodepartment and Road Equipment Sub
 department claimants listed below and all claimants
 listed in the Track Subdeparttment Roster, Classes
 1, 2 and 3 each be allowed an equal proportionate
 share of the total number of hours expended by
 outside forces in performing the work referred to
 in Part (1) hereof accruing to their respective
 classes beginning sixty (60) days retroactive
 from July 21, 1980.

                L. D. Swift C. D. Sherman _. J. Tubas

                R. S. Collins F,. D. Baker B. D. Diggs

                G. A. Cody ... Motley 3. J. Sperry

                R. D. Lewis J. E. Jackman- M. C. Lindley

                W. J. McGee G. H. Coady J. D. Scott

    - -- ii. L. Henderson B. E. ?gale R. D. Watson

                V. L. Haggard J . D. Dugger L. E. ;·?u`^hy -

                            ' AWARD NO. 7 (page 2)

                                            CASE NO. 7


                B. Block R. Ponce DeLeon J. A. Cruz

                R. R. Rale H. W. Woodward W. J. Mass

                R. C. Stanley J. E. McKinney J. V. Downing

                S. D. Morton M. T. Gilbert P. J. DeRidder

                A. C. Thorn R. R. McKinney S. T. Beaudrie

                L. H. Morris D. E. Murphy J. M. McKinney

                J. L. McMahna W. J. Chelf A. S. Alaniz

                A. L. Price R. L. Smiley D. James

                L. E. Schaffner R. Rodriauez M. Rios

                R. E. Kindle P. H. Smith


FINDINGS: By reason of the Memorandum of Agreement signed Novem
 ber 16, 1979, and upon the whole record and all the
 evidence, the Board finds that the parties herein are employe and
 carrier within the meaning of the Railway Labor Act, as amended, and
 that it has jurisdiction.

 At issue here is the interpretation and application . of Rule 4 (b) of Agreement, reading:

            "Contracting (b): Employees included within the scope o= tT agreement in the Maintenance of Way and Structures Department perform work in connection with the construction, maintenance or repairs of, and in connection with the dismantling of tracks, structures or facilities located on the right of way and used in the operation of the Company in the performance of common carrier service.


            Work as described in the preceding paragraph may not be contracted to outside parties, except by agreement with the Brotherhood, unless special skills not possessed by company employees, special equipment not owned by the company, or special material available only when applied or installed through supplier, are required; or unless work is such that the Company is not adequately equipped to handle the work; or, time requirements must be met which are beyond the capabilitibs cf company forces to meet.

r

                                                AWARD NO. 7 (page 3)


    .. CASE NO. 7


                  In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Organization in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in 'emergency time requirements' cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Company shall promptly meet with him for that purpose. The Company and- the Brotherhood representative shall make a good faith attempt to reach an understanding concerning said contracting, but if no understanding is reached, the Company may nevertheless proceed with said contracting and the Brotherhood may file and progress claims in connection therewith.


      On May 1, 1979, the Company sent a letter to the General Chairman of the organization, and the letter reads:


                  "The Fort Worth and Denver Railway Company plans to contract extensive restoration of embankments and cut sections at various locations between M.P. 0 and M.P. 454, Fort Worth to Texline, Texas, during the remaining year 1979, and throughout the year 1980.


                  The work will be accomplished by use of Dumore grading equipment and superload scrapers, assisted as necessary by relative machines. The Railway Company is not adequately equipped to handle the work, therefore, we are requesting the company be allowed to proceed with contracting said work.


                  May we please have your concurrence to let the above-described work to contract as provided by Rule 4(b)."

                                      a ~s'a~g


                                    AWARD NO. 7 (page 4) CASE NO. 7


            In concrete and specific terms, Rule 4(b) provides

that the Carrier "shall notify the General Chairman.of the organ
 ization in writing as far in advance of the date of the contracting
 transaction" and provides for a "meeting to discuss matters relata ng
 to said contracting transaction" which might "reach an understanding
 concerning said contracti~ ng". (underscoring added).

 The Carrier's letter of May 1, 1979 is silent concerning "the contracting transaction" in the instant case involving the 'Hedley siding". A close scrutiny of the evidence of record has been unsuccessful in establishing that the Carrier notified the General Chairman of the organization of the contracting transaction. In the absence of such notification pursuant to Rule 4(b), the claim must be sustained.

                        A TR A R D


            1. The Carrier is in violation of the Agreement.


2. Claim for each named claimant is sustained for wage loss suffered; i.e., the named claimant's proportionate share of time when added to his straight-time compensable time for period involved shall be limited so as not to exceed the total of his normal compensable time.

                      04


                JOSEPH 7.AZAR, CHAIR2LF~N AND NEUTRAL NMM4BER


                                    .aJ, l ~ c.·. t v


S. E. FLEMING, EMPLO E 4ME14BER B. J. MASON, CARRIER MEMBER

 DATED: ~_i^ /7 /pY
                    /