- CASE- No. b


PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) VS.
 DISPUTE ) FORT WORTH AND DENVER RAILWAY COMPANY

 STATEMENT Claim of the System Committee of the Brotherhood
 9F 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 dismantling work, track and culvert construction work and grading work in connection with extending-the 'Hedley siding' (System Files F-21-80/

                ZMS

                  -2 and F-22-80/MS-2).


            (2) Because of the aforesaid violation, the Bridge

            and Building Subdepartnent and Road Equipment Sub

            department claimants listed below and all claimants

            listed in the Track Subdepartment Roster, Classes

            1, 2 and 3 each be allowed an equal proportionate

            share of the total number of hours expended by

            outside forces in per-forming 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. Tubbs

                R. S. Collins E. D. Baker B. D. Diggs

                G. A. Cody E. Motley B. J. Sper=y

                R. D. Lewis J. E. Jackman M. 0. Lindley

                U. J. McGee G. H. Coodv J. D. Scott

                    L. Henderson B. E. Hale R. D. 6Iatscn

                V. L. Haggard J. D. Dugger L. E. Murphy

                                                      _A


                                  a ~~9 - AWARD NO. T (page 2 )

                                  CASE NO.


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

                R. R. Rale H. W. Woodward W. J. Moss

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

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

                A. C. Thorn B. 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. Schoffner R. Rodriquez 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 agreement in the Maintenance of

            Way and Structures Department perform work in con

            nection with the construction, maintenance or re

            pairs 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 Com

            pany 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 mat-

            erial 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 capa&iliti6s of company

            forces to meet.

                                  ~5ag -AWARD NO. It (page 3 )

                                  CASE NO. a


      _ . 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 representa

            tive, 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 embank

            ments and cut sections at various locations between

            M.P. O 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 Rule4 (b) ."

                  - AWARD NO. g (page 4)

                  · CASE NO.


            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 contractin
 transaction" and provides for a "meeting to discuss matters re atinq
 to to said transaction" which might "reach an understanding
 concerning sa~tr n~~(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 W 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.

                JOSEPH ZAR CHAMIO-111 AND NEUTRAL MEMBER


S. E. FLEMING, EMPLOYE MEMBER B. J. MASON, CARRIER MEMBER

 DATED: