PARTIES TO DISPUTE:



          Union Pacific Railroad Company


STATEMENT OF CLAIM:

 Claim of the System Committee of the Brotherhood that:

          1. The Agreement was violated when the

          Carrier assigned outside forces clear right

          of way of old ties) [sic] from McCammon to

          Pocatello, Idaho on the Pocatello Subdivision

          beginning October 8, 1998 and continuing

          (System File J-9852-77/1168721).


          2. 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 violations

          referred to in Parts (1) and/or (2) above,

          Northwest District Roadway Equipment

          Operators M. J. Dunn, G. L. Purkey, Idaho

          Division Truck Operator E. Ibarra, Idaho

          Division Track Subdepartment Track Foreman W.

          A. Webb, Idaho Track Subdepartment Sectionmen

          R. C. Sparks, M. M. Cantu, T. T. Mills, D. R.

          Balls, R. Rascon and D. R. Robinson shall

          each be allowed pay at their respective

          straight time and overtime rates for a

          proportionate share of the total straight

          time and overtime hours worked by the

          contractor doing the work claimed as

          compensation for loss of work opportunity

          suffered from October 8, 1998, until the

          contractor is removed from Company property

          or until the project is completed.


                            1

FINDINGS:

 'PL 8 toN3o Awd I

 This Board, upon the whole record and all of the evidence, finds and holds as follows:

 1. That the Carrier and the Employees involved in this dispute are, respectively, Carrier and Employees within the meaning of the Railway Labor Act, as amended,; and

      2. That the Board has jurisdiction over this dispute.


OPINION OF THE BOARD:

 A careful review of the record indicates that the present dispute involves an alleged "as is, where is" transaction. The contract concerning the transaction, however, is internally inconsistent. In particular, the contractual language lacks the necessary clarity to determine on the face of the contract whether a bona fide "as is, where is" transaction occurred. Such inconsistencies require that the contract be construed against the Carrier, which drafted the contract. Although some evidence exists that a transfer of ownership actually did occur, a technical violation of the collective bargaining agreement also occurred insofar as the Carrier made certain payments for the outside forces to remove the ties. Such payments by the Carrier therefore preclude a finding that a completely bona fide "as is, where is" transaction occurred. Thus the Carrier's affirmative defense for contracting out is not completely valid. In the absence of any further evidence in the record and in the context of these special and unusual circumstances, each Claimant shall receive 40 hours of straight time compensation as a remedy for the violation of the collective bargaining agreement by the Carrier.

 AWARD:

 The Claim is sustained in accordance with the Opinion of the Board.

Robert L. Doucffas

Chairman and Neutral Member


Bartholomsl
 Employee Member

 Dated:

ko. C

D. A. Ring
 Carrier Member