PARTIES TO DISPUTE:

          Brotherhood of Maintenance of Way Employees


                          and


          CSX Transportation, Inc. (former Louisville and Nashville Railroad Company)


STATEMENT OF CLAIM:

 Claim of the System Committee of the Brotherhood that:

          1. The Agreement was violated when the

          Carrier assigned CV Subdivision employes from

          Gang 6CA8, who hold no seniority on the K&A

          Subdivision, to perform track work at

          LaFollette and Knoxville, Tennessee on August

          19, 20, 21, 22, 26, 27, 28, 29, September 16,

          17, 18, 19, 23, 24, 25 and 26, 1996, instead

          of assigning furloughed K&A employes to

          perform said work [System File 7(31)

          (96)/12(97-167) LNR].


          2. As a consequence of the violation

          referred to in Part (1) above, furloughed

          employe M. A. Scates shall be allowed:


              . . . ten (10) hours straight time for each date of August 19, 20, 21, 22, 26, 27, 28, 29, September 16, 17, 18, 19, 23, 24, 25 and 26, 1996 at the Track Repairman's straight time rate of pay. The second senior furloughed employee should be allowed ten (l0) hours straight time for each date of August 19, 20, 21, 22, 26, 27, 28, 29, September 16, 17, 18, 19, 23, 25 and 26, 1996 at the Track Repairman's rate of pay. The third senior furloughed employees should be allowed ten (10) hours straight time for each date of August 19, 20, 21, 22, 26, 27, 28, 29, September 24 and 25, 1996 at the Track Repairman's rate of pay. The fourth senior furloughed employee should be allowed ten (10) hours straight time for the dates of August 19, 20, 21 and 22, 1996 at the Track Repairman's rate of

                                              S 6N 1110 A w d 93


              pay. Please advise of the pay period

              when said payment will be made.


FINDINGS:

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

 1. That the Carrier and the Employee involved in this dispute are, respectively, Carrier and Employee 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 Carrier has acknowledged and the record proves by a fair preponderance of the credible evidence that the Carrier used employees from a different seniority district to perform the disputed track work. Specifically, the record substantiates that the out-of-district employees from the Cumberland Valley Subdivision performed the disputed work during the referenced period on the Knoxville and Atlanta Subdivision.

 Rule 10, which relates to transfers from one seniority district to another, provides in pertinent part that:

      (a) If it should be essential, in the opinion of the Management, to efficient operation to transfer an employe from one seniority district to another in the same subdepartment, that may be done. Individual employes or gangs will not be transferred out of their respective seniority districts to another district, except under the following conditions:


              1. In emergencies;

              2. When there are no cut off employes

              in the same class in the seniority

              district to which the transfer is

              made;


The present dispute therefore narrows to whether eligible furloughed Claimants existed from the Knoxville and Atlanta Subdivision that precluded the Carrier from assigning employees from the Cumberland Valley Subdivision to perform the disputed work.

 The record indicates that during the handling on the property the organization identified only one Claimant from the Knoxville and Atlanta Subdivision and that this particular Claimant, M. A. Scates, had not become medically qualified to return to work at the time because he had not satisfied the requirement regarding a medical physical examination. As a result, Claimant Scates lacked a critical requirement to be considered eligible to have
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                                                RWd 13


performed the disputed work during the relevant time period covered by the Claim.

 The submissions in the present dispute further reflect an ongoing factual dispute between the parties concerning the existence of any other employees from the Knoxville and Atlanta Subdivision on furlough status at the relevant time. A continuing significant factual dispute in the record exists about this critical point concerning the existence of any other qualified Claimant on furlough status from the Knoxville and Atlanta Subdivision. As a result, no basis exists in the record developed by the parties to resolve an essential element of the remaining disagreement between the parties about a fundamental aspect of the dispute.

 AWARD:
The Claim is denied regarding Claimant M. A. Scates and is dismissed regarding any other potential Claimants.

                      Robert L. Dou as

                  Chairman and Neutral Member


"
 D na BartholoRtal~ Mark D. Selbert
 Employe ~ember _~ Carrier Member

 Dated: