PARTIES TO DISPUTE:

          Brotherhood of Maintenance of Way Employees


                          and


          CSX Transportation, Inc. (former Baltimore and Ohio 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 (Progress

          Rail Service) to pick up rail and other track

          material between Mile Posts BF 180 and BF 245

          on the Pittsburgh East Seniority District,

          Baltimore Service Lane on December 8, 9, 10,

          11, 12, 15 and 16, 1997, instead of assigning

          Class 'A' Machine Operator W. F. Shippy

          [System File B-TC-3000/12(98-0968) BOR].


          2. The Agreement was further violated when

          carrier assigned outside forces (Progressive

          Rail Service) to pick up rail and other track

          material between Mile Post 95, Parkersburg

          and Mile Post 170, Pt. Pleasant on the

          Monongah West Seniority District, Cumberland

          Coal Business Unit on Saturday, February 28,

          1998, instead of assigning Foreman J. L.

          Roush and Class 'A' Machine Operator T. L.

          Austin [System File B-TC-3058/12(98-1134)].


        3. The Agreement was further violated when

        carrier assigned outside forces (Progressive

        Rail Service) to pick up rail and other track

        material between Mile Post 95, Parkersburg

        and Mile Post 170, Pt. Pleasant on the

        Monongah West Seniority District, Cumberland

        Coal Business Unit on February 26 and 27,

        1998, instead of assigning Trackmen R. L.

        Kuhn and C. R. Clary [System File B-TC

        3059/12(98-1135)].


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          4. The Agreement was further violated when

          the Carrier failed to furnish the General

          Chairman with a proper advance notice of its

          intention to contract out said work as

          required by Addendum 13.


          5. As a consequence of the violations

          referred to in Parts (1) and/or (4) above,

          Claimant W. F. Shippy shall be allowed "...

          176 hours at Class 'A' Machine Operators rate

          of pay, plus credit with days for vacation

          qualification, credited with the months of

          October and November 1997 for retirement,

          credited with days for Feb 7 Section II

          guarantee and all other benefits, account of

          the aforementioned rule violation. ***"


          6. As a consequence of the violations

          referred to in Parts (2) and/or (4) above,

          Claimants J. L. Roush and T. L. Austin shall

          be allowed "... eight (8) hours at the

          overtime rate, at the appropriate rates of

          pay for each claimant, (Foreman = J. Roush

          and Class 'A' Machine Operator = T. Austin .

          account of the aforementioned rule

          violations. ***"


          7. As a consequence. of the violations

          referred to in Parts (3) and/or (4) above,

          Claimants R. L. Kuhn and C. R. Clary shall be

          allowed "... sixteen (16) hours at Trackman

          rate, each claimant, account of the

          aforementioned rule violations. ***"


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:

 The record indicates that outside forces performed the disputed work. The Carrier presented as an affirmative defense and explanation a representation that the disputed work involved the sale of scrap rail and other related materials pursuant to Sale

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Order 975169, which became effective May 15, 1997. The Carrier further clarified that the outside concern had purchased the material on an "as is, where is" basis and that the outside concern merely had engaged in activity to remove the concern's property from the right of way.

 With respect to Claim 1, Claim 4, and Claim 5, the documentary evidence reflects that Sale Order 975169 covered the disputed work. Under these circumstances, the evidence contained in the record fails to prove that the Carrier had violated the Agreement by using outside forces to perform the disputed work.

 With respect to Claim 2, claim 3, Claim 6, and Claim 7, Sale order 975169 fails to cover the disputed work. In the absence of sufficient proof to establish such an affirmative defense for the Carrier, the record reflects that the Carrier failed to provide the necessary notice to the Organization and therefore failed to prove the Carrier's affirmative defense.

 AWARD:
Claim 1, Claim 4, and Claim 5 are denied in accordance with the opinion of the Board. Claim 2, Claim 3, Claim 6, and Claim 7 are sustained in accordance with the opinion of the Board. The Carrier shall make the Award effective on or before 60 days following the date of this Award.

                    Robert L. Dou as

                Chairman and Neutral Member


D nald . Bartholom Mark D. Selbert
 Employee ember Carrier Member

 Dated: ~S

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