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Award No. 36 Case No. 36

Brotherhood of Maintenance of Way Employees

and

CSX Transportation, Inc. (Former Seaboard System Railroad)

STATEMENT 4F CLAIM:

Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the

carrier assigned outside forces to load

crossties into gondola cars at Davis Yard and

Acme Yard on the Wilmington Subdivision of

the Florence Division commencing November 9,

1994 [System File 23 (1) (95)/12(95-0274)

2. The Agreement was further violated when

the Carrier failed to give the General

Chairman fifteen (15) days' advance written

notice of its intent to contract out said

work as required by Article IV of the May 17,

1968 National Agreement.

3. As a consequence of the violation

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

Track Subdepartment, Group A employes T. H.

Turbeville, G. C. Cashwell, R. K Wright, S.

J. Newkirk, W. D. Murray, N. H. Cobett, C. E.

Carr, C. G. Rhodes, H. L. Genwright and G. E.

Hemmingway shall each receive, at their

respective straight time rates of pay, an

equal proportionate share of the total number

of manhours expended by the outside forces

commencing November 9, 1994 and continuing

until the violation ceases.

FINDINGS:

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

1

1. That the Carrier and the Employees involved in thi; 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 disposal of scrap railroad ties stockpiled in certain centralized yards by the Carrier. In citing the Hazardous and Solid Waste Act of 1984, the Carrier provided credible evidence that special government regulatory requirements existed for the disposal of the spent railroad ties, which constituted industrial waste. As a result, the disputed work of loading the crossties from the centralized locations into gondolas as an incidental part of the disposal of the scrap railroad ties fails to fall within the scope of the customary and traditional maintenance work performed by the members of the bargaining unit along the Carrier's rightof-way. In the absence of any credible evidence that the members of the bargaining unit had performed the disputed work in the past, the Organization failed to meet its burden of proof under the precise circumstances of the present case.

With respect to the advance notice issue, the record indicates that the Organization failed to raise this issue during the handling of the dispute on the property. As a consequence, the Board shall not consider such a new argument in the present proceeding.

AWARD:

The Claim is denied in accordance with the opinion of the Board.

Robert L. Doug-.a!i''

Chairman and Neutral Member

odnald BartholoilC
Employee ember

Dated:

` -' ~Rr

2

Patricia A. Madden Carrier Member