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 (Heavy

          Railroad Excavating) to perform routine

          Maintenance of Way work of cleaning the right

          of way of ties ont the Ayer Subdivision

          starting at Cheney, Washington and working

          toward Matthews, Washington commencing

          November 8, 1998 and continuing (System File

          J-9852-82/1177216).


          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,

          Roadway Equipment Operator D. W. Dacus,

          Foreman P. S. Gonzales, Truck Operator B. J.

          Lamb and Sectionmen T. J. Castorena and E. A.

          Leija shall now each be paid '*** at his

          applicable straight time and overtime rate a

          proportionate share of the total hours worked

          by the contractor doing the work claimed as

          compensation for loss of work opportunity

          suffered from November 8, 1998, until the

          contractor is removed from Company property

          or until the project is completed.***'


FINDINGS:
This Board, upon the whole record and all of the evidence, finds

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                                                'PL8 !0q3o


A Lod 5 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 record concerning the transaction, however, lacks the necessary clarity to determine whether a bona fide "as is, where is" transaction occurred. (Attachment No. 1 to Employes' Exhibit A-7 at sheet 1 of 1; Carrier's Exhibit B-1 at page 1; and Carrier's Exhibit B7.) In the absence of sufficient evidence, the record must be construed against the Carrier. Although some evidence exists that a transfer of ownership of the relevant material 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 relevant material. 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. DouEflas

                Chairman and Neutral Member


D . Bartho D. A. Ring
 Emp oyee Me ber Carrier Member

 Dated:

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