.. That the Carrier and Employees involved are, respectively, Carrier and Employees within the meaning of the Railway Labor Act, as amended, and;
3. That the Carrier asserts that it donated dirt,, used ballas~: and crossties on an "as is, were is" basis to the City of tc°~tgc~ ry. T£:e Carrier points out that the Organization initially -lei_med t%at the Carrier entered into some type of agreement with t:* a -:_ty of Montgomery and failed to notify the Organization of its __=w~:~t t contract out the removal work. The Carrier argues that .~e. -wc-: positions indicate a conflict in the facts of the dispute any' rise--is that it is beyond the Board's jurisdiction to resolve factual c--nflicts.
4. The Carrier contends that the Organization has failed to meet the necessary burden of proof. The Carrier points out that it donated the scrap, material to the City of Montgomery. The Carrier asserts that, contrary to the Organization's argument, no Rules in the Ac reement bar the Carrier from donating its property to outside concerns: and the Scope rule does :got preserve the removal of scrap material to Organization employees.
. The Carrier argues that once it relinquished control o= ~::-e material and the City commenced removing same the property no ?onger 'belonged to the Carrier. The Carrier asserts that its action cannot be considered contracting out as alleged by the organization. Citing authority, she Carrier contends that the 'hoard has consistently upheld the right of the Carrier to sell or donate its property: the removal of that property by an outside party does not ccnstitute "contrasting out".
6. The Carrier further asserts that Claimants were neither ~.rai? :able for additional work nor deprived of any loss of earnings. The~.arrier contends that during the two (2) weeks in question, all of th~.~ Claimants were regularly assigned and under pay. As such, th,a -arrie:- contends, Claimants were unavailable to perform the
~?~ i n -iestion. ~iting authority, the Carrier argues the Board ::as to.-.g held that an employee must be available for work to be considered eligible before filing a claim. to an assignment. The
Carrier further argues that in the event it could beg held that the Aar eemerit .4as via? ated, Claimants have no valid claim for payment as the Board has held that to award such payments would be imposing a penalty 1opon the Carriar and giving the employees a windfall.
7. The Organization contends that the undisputed facts are ts:at six !o) employees of an outside contractor for the City of Mcntgcmery, Alabama were assigned or otherwise permitted by the Carrier to perform the routine Maintenance of Way work of removing ties, dirt., L-allast and to smooth an area within the Carrier's Mr; r:comezl~ yard on the dates in question. The Organization cr~::tends that it is also undisputed that the outside forces were p-rformed this work while working in conjunction with the Carrier's section forces. The Organization asserts that the Carrier failed ar_d ref-ised to provide the Organization with advance written notice of its intention to farm said work out. For these reasons, the Crganiration argues that the Carrier violated the contracting out previsions of the Agreement.
8. ?'he Organization asserts that Claimants were "fully cua'ified, willing and available to perform all of the work ~:wolved :.r. this dispute and would have done so had the Carrier as:aicned -hem thereto". The Organization further contends that. the Carrier had excess machines idle and BMWE employees on furlough froT tile seniority district during the claim period.
The Claim is sustained in accordance with the Opinion of the Board. Ciaimants, Foreman E.T. Holder and Machine Operators D.R. Hayes, J.L. McMeans, J.H. Floyd, D.W. Cobb and D.E. Peters, shall each be allowed eighty (8?) hours' pay at their respective straight tire rates, less a set--off for amounts earned ,for work actuary performed during the claim dates.
