Case No.: 27


    PARTIES T9 DISPUTE ' ; ·;-


              BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

              . AND

              CSC TRANSPORTATION, INC, (former L&N)


    STATEMENT OF CLAIM `

    o .


' ' ', First: ,7rhat· tha''Agreement dated,October 1, 1973 between the two'
 . ... ; -parties'was violated, along with Letters of'Hnderstanding dated
 August 20, 1975, May 12,'1976 and February 17, 1978, which will be
 Exhibits'"A" "B".Avid "C" Second ~', ' .
 Tha '·* ·laiinants C.~ '
 : t, ,,g Rs 8lalock',and S. R. Stewart be paid 8 , ·
 · -;' ~,, .hours st~Aight"!tme~ startingwith Augyist., 3, ·1985 through August ,'. ,,,. ' ,;.,

      . ;'24,", 19$$;,.'and'60'kiours overeljne that w4'k 'made' contrac=tor'. .,


    FINDINGS . ··, . · , · ..~ ,,. ~: - . . .~.i


      From August 3 ro;25, 1985, the·Carrier.contracted for the services of a ·-

                                                          r. . i


Speno Rail brinder~s~ ,The Carrier, did' not bullatin· the', extra gang foreman arid, 1'- :".. ,r

 machine operator or temporary machine operator and temporary assistant '
 machine operator positions which it had bulletined in the past. Provision , -i'·' .· .
 for, these positionsis based on the parties' letter,pgreement,dated August ,, ';:~.', r?·
                                        ~.


    20, 1975, which provides: ' . _'

It was, agreed that we could contract for the above work immediate. ly and that' we would bulletin',iin Extra Gang Foreman position at the rata'vf $1,046.98 pet month and an Operator position at the rata of-$1,010.52 per month to accompany this machine while it is being used on -our property. These positions will be bulletined on each Division that, the Grinder is being used and will be abolished when the!Grinde#~ lepves that ,particular Division. The Engineering Department is 9ieing advised' that the qivisivn scheduled to receive
 the Grinder should bulletin these positions in ample time before the Grinder.get's to their Division so the successful applicants will be, available to go along with the Grinder while it is on . ' their, Dfvis1'on,:. · .The successful applicants to these positions will be alloyed th'ez'~a,5,tual necA,ksary expenses while 7~,fth the. Speno Rai'1,.GAndar.; ',T·$ there iq.,a~,~peed for' ?tha ,services q,f p6'rsorinel; to put'out"fires behind this machine, then our forces will~be used in

 that connection,

 The~employes'in,the position's4fK'question.usually,followed tho Grinder

 to extinguifih fires'. The Carrier states that the Spent Grinder used in

 August 1985 was a mothfication.,of,the.Speno'-Grinder used, in the pas t. in that

 it was outfitted witN,water in a manner that prov4ded.for protection, agains,t fires on .the right of ways. The Organization states that neither the Grinder nor its method'of operation was substantially 'modified since 1979, Then operating the Cfirider, a carrier, officer accompanied it to' ensure thaC.'-" it was operated properly. On the. particular-dates in question, a Contractor

 operated the Grinder with a Carrier, officer. Claimants era tile employ`es

 who the Or& anization claims would"hav® performed the work had the Contractoi--"

 not done so.

 Rule i of the Agreement provides:

 Subject to the exceptions in Rule 2, the rules contained herein shall govern the hours, of service, working conditions, and rates of pay for all employer in any and all subdepartments o£ the
 Maintenance of* Way and Structures Department, represented by the Brotherhood of Maintenance of Way employes, and such employes shall perform all work in the maintenance of way and structures department.

 The issue to be Idecided in this dispute is whether the Carrier violated the Agreement by not advertising the two fire guarding positions; and if so,

 what should the remedy be,

 The position of the Carrier is that no violation occurred. It contends
 that Rule I is not relevant as it pertains to, "hours of service, general
 working condi A tidns arid rates of. pay`...." Rule 1 does not reserve this work
          ,,


to the Organization and the Carrier maintains that the Organization is

 ,attempting to "featherbed." Further, the Carrier maintains that the
    ,

uppradirig of'. the Speno Grinder eliminated the need for additional firefight
 ing personnel since 'the.upgrading included firef4hting and fire retardant

 ,aspects "'to,,the:eqgipmeat. Finall~. 'heCarrier contends that the meaning o£.

 . the'.,languabelad;,the'f.975 lettex..ag~reement 'does.not'·hiiid it to advertising two addifional positions every time a rail grinder was used; if it did,

 there: would have been no need'to, in4ude the language in the' letter at all

 regarding the-,use'of "'our forces.,^Simply put; the Carrier argues that the Organization'has 'not .sustained its burden of proof. ,

    The position of the Oxganizati.oa is that the Carrier has violated'Aule


1 and the letter agreements by not,advextising the two positions. The'
 Organization maintains that the work that needed to be~performed belonged to-'.
 its craft; the work dealt with the physical area for~which the Organization
 is responsible. The Organization maintains that the. Carrier's position; that',,
 the Sperio 6ztnde~s;iwa~:~upgraded ,ys .without merit. fh~':Ozganization,,pointa

 out that 'che fur'nishing of a,'wat°cr ,car and the running of 'hoses to the engine and caboose for. the purpose o£ extingufshing fires has bean the pradtice~since 1918.:, Therefor4'',~,ttifra is nn basis for alleging that the

 positions are not necessary.

 After review-of-the entire record, th¢,Board fiad$y thaC the Carrier violated the Agreement'and directs that the Carrier pay Claimants in

 accordance with the Agreement.

 The Organization, has established by substantial credible ~evidenae in the record that theta was no substantial change in the method'ofoperacion~.,1,.

 of the Speno Rail GYinder. Therefore, them is no basis for the Carr4r's

 elimination ,<byfailure to advertise) of the use of two additional employes, k to fight fires in the right of way. This work was taken away from the Organization in violation of Rule I and the latter agreements relevant to

 this operation. The Organization has operated the water truck and fire resisting equipment in the pass and the evidence is that the Carrier is obligated to advertise for Organisation personnel in order to conduct these, identical tasks. Having failed to do so, the Carrier is in violation. This work is not reserved Forever to the Organization. But so long as the carrier performs the same tasks with the same equipment in the same manner, it must recruit the personnel for the tasks in the fashion required in those

 circumstances.
 AWARD
Claimants will be .paid.8 hours straight: time for, the period Auplse 3 tb'.,

 24, 1985 and 60 hours overtime.

 Date:

 /Neutral Member
      I, Member er


Carrier Member