,~ART_= Brotherhood of Maintenance of Way Employs%
 To and
 DISPUTE Burlington Northern Railroad Company
j.l ME ENT 111. The Agreement was-violated when the Carrier as-
 OF CLAIMS signed outside forces to unload and distribute
 ties from gondola cars at locations between
 Stanley and Temple, North Dakota; Surrey and
 Karlarude, North Dakota'; Devils Lake and Leeds,
 North Dakota& and between Staples and New York
            Mills.. Minnesota on various dates beqsnninq

            December 11, 1991 through April 22, 1982 (System

            files T-D-192C, T-D-1960, T-D-2050 and T-M-40401.


            2_ The Carrier also vsolatmd the Agreement when it did not give the General Chairman advance written notice of its intention to contract out said work,as stipulated in the Note to Rule 55.


          ::. As a consequence of the aforenaid violations.

            Grnup 2 Machin& Operator V. hi. Belfors shall be dllowwd pay at the applicablw rate for all straight time And overtime work performed by the contractaor on Docembar 11, 12, 14, 1D, 16, 22, and 23, 1081;

            JanuorY 5, 6, 22, 20, 26, 27, ::B, 29; February 1, 2 3, 4, 5, 8. 9, 10, 11, 12, 16. 17, 18, 19, 22.

            ?3. 24, 75 and 24, 1982. Group ^c Machine Operator r;, J. Schneider shall be allowed eight (8) hours of PAY at the Group 2 machine operator's straight time rate plus any applicable overtime pay for work performed ny the =antractor nn March 29, 70. 31 and

            April 1. :., : , 6. 7. e, y, 12, 1:.,. 14. l5, 16, 19. 20, 21, and 22, 1962."


FINDINGS
Upon the wrnlr -rnrd, ,after hearing, the Board finds that the

 p:Wi;ieS herein arv Carrier and Empluvees within the meaning of

 t,:-!e w.alw~v &_abor Ac L, ax amended, and that this Board is duly
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 constituted under Public Law 59-436 and has jurisdiction of the
 parties anti the subject matter.

The Claimants herein, Group 2 Machine Operators, were regularly assigned in the Carrier's roadway equipment subdepartment working at Minot, North Dakota and Staples, Minnesota at the time of the

·.ncsdents involved in this dispute. On the dates specified in the claim in December 1981 and January through April 1982, Carrier rontracted out the work of unloading ties from gondola cars at various locations in North Dakota and Minnesota to the Herxog Manufacturing Company of St. Joeeph, Missouri, All the points involved in Minnesota and North Dakota were in Carrier's Twin Cities region. The ties were removed from the gondola cars by a spac.ial machine known as a "cartupper." Carrier did not own such a ;tiach.lnLl and a machine was available from the contractor only with its own operator. At various points during the unloading of the thR ~.iwts, h.;rrier's own maintenance of way forces were used to assist in the unloading process.


The record indicates that prior to the events herein, over a nariod of many dscades, ties had been shipped and unloaded nn the right of way after arriving in either cattle cars or flat cars. When they arrxvwd at the work locations they were unloaded by

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 hand, This function was performed by track forces. In 1977,

Carrier attempted to move ties arid gondola cars and there were many problems with the track forces in attempting to unload them by hand. In ,fact, on Fwbruary 25, ' 1977, the Vica General Chairman of the Orgarlixatian requested that the maintenance of


way employees would not be risked to

 conditions which prevailed when they

 .:era. Carr-z®r responded at that
 OrgAnixation as follows:

 unload' ties under the

 were chipped in gondola

 time to 1977 advising the

 "Please be advised that iC is not the policy of the Minnesota Division to unload ties from gondola carp:. If we do receive any ties loaced 1n gandolT cars, we will make arrangements to unload in comp other manner."

 'he rPCdrd indicates

 empluyet ware using its or other machines and

 that the alternative methods
 rawn farces with either locomotive
 Also using contractors, such as

 Carrier

cranes Herzog,


whxch was =squippad for the particular tack. Apparently, Carrier ,9akarmined that .it was much mgrs efficient to unload ties from gondola cars by which much larger quantities could be chipped, than in any other manner.


F~etstionsrr argues 1n essence that the Carrier violated the Scode
 Rule with Note to Rule 53 as wall as Appendix F dealing with the
                                                    3L1to0-G~


Mediation Agreement of October 7. 195! in its actions in contracting out the work. of removing ties to the Heraog Company. Petitioner maintains that the work of removing ties from various railroad cars has been historically and exclusively the work of its members and. further, that Carrier- was obligated under Rule 9,5 and its Note, in particular, to notify this Organization of its s.ntantion to contract out such work. If the work, indeed, was a change in method under the Mediation Agreement, again Carrier was oUligatad.~as the Organization, views it, to notify the Petitioner of its intention to make a material change in its operations. In either event the Organization insists that Carrier violated the Agremment, in particular the entire Scope Rule, by contracting outwork which was ctAytcmarily performed by employees in the track department.


rarrier'a argument may be summarixad to indicate that the work of unloading ties frcm gondola cars, has not been historically. and t,y systemwide past practice. the ouclusive work of employees covered by the Maintenance of Way Agreement andp in particular. riot by Machine operators. Thca work ir: question is not specified xn the Scope Rule of the Aareemenc and since exclusivity as wall in torms of practice has ~iot neon established. the claim has no rn"rtt as carriar:iawra it. Carrion insists that there was no aLolatiuri ut thw Note to Rule 55 in its actions. Carrier relic%.

                                            3Li (ou (63

                                            -5-


x» part, an Award No. 9 0V Pub1Le Law board 2206 which specified
 in pertinent parts
            "The Scope Ruleyof the parties' Agreement, like that of the Capitol's M8, is a general scope rule. In such circumstances the Organizations prRvall under the Note to Rule 55. must snow reservation of the disputed work to MaznlLenancu of Ways employees by exclusive systemwide."


A careful check of the record of the dispute door, not support any

                                                  ,..

p.qprvz.itj,,jn tnat the wore- -af unloading ties from gondola cars has been performed exclusively by employees covered by the Aqreement in question. In fact it is evident that for at least five years, 4ince 1977, the removal of ties from gondola cars has had a mixed r; ract=ce u5inq bath outside contractors as well as empiayer's own trac4: forces. Thus Petitioner has not met its burden of showinq aithor exclusivity or even customary performance of the disputed wnrk by its own members. Further, it is evident that the particular tasks specified in the claims are not spelled out with particularity in the Scope Rule. Although it iz true that track farces have custamarily and historically unloaded ties by hand From ·:-;rLous other types of Carrier's cars. that is not the issue 1.)etare this kIoard. 13y xta language, the Note to Rule 55 does not ,,recliuik, the finding that work must be :,t least customarily. it r,ct arc.luczvely, performed by employees represented by the

Petitioner for the Petitioner to aucc,sad. In this instance, the work was neither e;;clusivalv performed or customarily performed by track forces nor was the work specified in the language of the scope rule. The Hoard is constrained to conclude, in view of the fact that Petitluner has 'failed to demonstrate that. the work in questaon was reserved to it by agreement, custom or practice, that: tae claims must tie dismisssed for lack of proof. (Son Third nivlsion Award :.?276.)


Et. Paul. Minnesota

 1983

 Claim dismissed for lack of proof.

 1. M. Lieberman# Neutral-Chairman

 Employers Member
                                                  3`~0-63


        pi4VRNT To AWARD NO63 Of' PUBLIC LAW BOARD N0. 3460


    In reaching its decision in this *sea the Majority stated that:


        " A careful check of the record of the dispute does not support any proposition that the work of unloading ties from gontlnla cars has been performed exclusively by employees covered by the Agreement in question. In fact it is evident that for at least five years, since 1977, the removal of ties from gondola cars has had a mixed practice using both outside contractors as well as employer's own track forces.


and that:

        Although it is true that track forces have customarily and historically unloaded ties by hand from various other types of Carrier's cars, that is not the issue before this Board. ***"


The Board goes on to deny the Claim based upon the Organization's failure so establish that the tie unloading work involved here was exclusively performed by Maintonancc of Way forces. The Board's determination is in error as follows:

 First, this dispute involved the Carriers uncontested failure to give the Geaerai Chairman advance written notice of its intention to contract out Ltte tie unloading work in question. Thin Board, in considering the question of "exclusivity", departed from the well establist,ed body of awards espousing Lhd principle that the question of exclusive reservation of work has no applicaLion in disputes involving the Carriers failure to provide the requisite advance nvLlcs in accordance with Article IV of the May 17, 1968 National Agreement and similar rules involving advance notice such as the Note to Rule 55. In this connection we invite attention to Third Division Awards 18305, 18687, 18792, 18999, 19578, 19631, 19899, 23203, 23354, 23598, 24137, 24173, 24236, 24280, 26016, 26174, 26212, 27012, 27185 and Award No. 5 of Public Law Board No. 4306. Typical thereof is Third Division Award 19578, wherein the same neutral member involved here, held:

        " We have rejected the exclusivity argument to a long line of cases, starting with Award No. 18305, and see no reason to depart from this reasoning. It is apparent that Carrier has ignored the provisions of Article TV and hence we shall sustain Part 1 (a and b) of the Olaim.11


                        - 1 -

    Third Division Award 23203 held:


        "Carrier argues that the organisation did not have exclusive rights to Lha work in question and thereiore it need noG confer with the general chairman. This Board has addressed the exclusivity issue irf previous awards and has rejected the argument that the organization must. prove exclusivity, prior to carriar being required to give notice under Article IV (Third ilivisioa Award N. 19574, Lieberman)."


By making a determination relative to the question of "exclusiVity" the Rnard has departed from the well established and well reasoned body of awarda holding to the effect that the question of exclusivity is not applicable in circumstances involving the Carriers failure to provide advance notice of its intent to contract ouL work.

 Sseond, we submit that this Award is in error because of the Board's determination that while track forces have customarily and historically unloaded ties "that is not the issue before this Board." The Board is in arrnr beeausa this dispute very plainly concerns Lhe Carrier's assignment of outside forces to perform work unloading crossties along the right-of-way. Whether such work was accomplished by hand or with the aid of mechanized equipment is immaterial. The cl;aracter of the work involved is the central concerg. In this instance the Organization established the fact that the work of unloading croastiea was work customarily and historically performed by Maintenance of Way forces. It is a well established principle that the Agreement applies to Lite character of the work and not merely to the method of performing it. Apropos here is Third Division Award 13189 which held:

        "Once it Is ascertained that a certain kind of work belongs to a class or craft of employee under the provisions of an Agreement, either specifically or impliedly, that work belongs to such class or craft, regardless of the method or equipment used to perform the work. The Agreement applies to the character of the work and net merely to the met.bod of performing it."


In the final analysis, it is clear that the reasoning applied in Award No. 63 of Public Law Board No. 3460 is faulty, therefore, I dissent.

                              8. W. Waldeier, Vice PrauiderrL