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 (Gillman

          Railway Services) to perform routine

          Maintenance of Way work (cleaning right of

          way of ties and wood debris) between Mile

          Posts 6.41 and 67 on the Marysville

          Subdivision of the Kansas Division beginning

          June 8, 1998 and continuing (System File W

          9852-164/1151592).


          2. The Agreement was further violated when

          the Carrier failed to give the General

          Chairman proper advance written notice of its

          intent to contract out said work and failed

          to make a good-faith effort to reduce the

          incidence of contracting out scope covered

          work and increase the use of its Maintenance

          of Way forces as required by Rule 52 and the

          December 11, 1981 Letter of Understanding.


          3. As a consequence of the violations

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

          Eastern District Group 19 Equipment Operators

          M. J. Coan, M. A. Glendening and Kansas

          Division Group 11 SPTMO's G. L. Yowell, D. A.

          Cox, B. A Bell and R. L. Thorman shall now

          each be compensated `*** an equal

          proportionate share of the man hours worked

          by the outside contracting force as described

          in this claim, at their respective Roadway

          Equipment Operators and Special Power Tool

          Machine Operators Straight Time and Overtime

          rates of pay ....'


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FINDINGS:

 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 record concerning the transaction, however, lacks the necessary clarity to determine whether a bona fide "as is, where is" transaction occurred. (Employes' Exhibit G-1 at sheet 1 of 1 and Carrier's Exhibit B-1 at page 1 of 1.) 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.

                        GZ~

                Robert L. glas

                Chairman and Neutral Member


D. . Bartho D. A. Ring \
 Emp yee Me ber Carrier embr

 Dated:

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