PARTIES TO DISPUTE:



          CSX Transportation, Inc. (Former Seaboard System Railroad)


STATEMENT CF CLAIM:

 Claim of the System Committee of the Brotherhood that:

          1. The Agreement was violated when the

          Carrier assigned an outside concern to

          perform field welds in switch panels at Mile

          Post SF-305.8 and Mile Post SF-306.4 in

          Monroe Yard on the Monroe Subdivision of the

          Florence Division on June 26 through 30,

          August 24 and 25, 1995 [System Files 23(19)

          (95)/12(95-1128) and 23(20)(95)/12 (95-1134)

          SSY].


          2. As a consequence of the violation

          referred to in Part (1) above, Welding

          Subdepartment, Group A employes R. S. Henry

          and N. Davis shall each be allowed two

          hundred forty-eight (248) hours' pay at their

          respective straight time rates and Welding

          Subdepartment, Group A employe L. J. Ludd

          shall be allowed forty-eight (48) hours' pay

          at his respective straight time rate.


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.


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OPINION OF THE BOARD
Rule 1 (Scope) specifies:

          These Rules cover the hours of service, wages and working conditions for all employees of the Maintenance of Way and Structures Department as listed by Subdepartments in Rule 5 - Seniority Groups and Ranks, and other employees who may subsequently by employed in said Department, represented by Brotherhood of Maintenance of Way Employes.


          This Agreement shall not apply to: Supervisory forces above the rank of foremen, clerical employees and Signal and Communication Department employees.


Rule 2 (Contracting) provides:

      This Agreement requires that all maintenance work in the Maintenance of Way and Structures Department is to be performed by employees subject to this Agreement except it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier. In such instances, the Chief Engineering Officer and General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed.


      It is further understood and agreed that although it is not the intention of the Company to contract construction work in the Maintenance of Way and Structures Department when Company forces and equipment are adequate and available, it is recognized that under certain circumstances, contracting of such work may be necessary. In such instances, the Chief Engineering Officer and the General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed. In such instances, consideration will be given by the Chief Engineering Officer and the General Chairman to performing by contract the grading, drainage and certain other Structures Department work of magnitude or requiring special skills not possessed by the employees, and the use of special equipment not owned by or available to the Carrier and to performing track work and other Structures Department work with Company forces.


The record substantiates that the Carrier provided the
 Organization with the requisite advance notice of the disputed work, that the parties conferred about the disputed work, and that the parties failed to reach an understanding setting forth the conditions under which the work will be performed. As a consequence, the present dispute materially differs from those instances in which a carrier had failed to provide an organization with the required advance notice of the intention to use outside forces.

 In reviewing a Rule 2 dispute in which the parties had conferred without reaching an understanding, the Third Division in Award 26220 (Marx, Referee) reasoned that:

          the Board perceives that the parties failed to agree as to whether the work should be contracted or performed by Carrier employees or a combination of both. The requirement of Rule 2 is not that strong, however. Is "reach an understanding setting forth the conditions under which the work will be performed" the same as requiring organization approval or consent to any contracting of construction work? The Board finds that it is not, relying on the preceding phrase, which states "under certain circumstances, contracting, [sic] of such work may be necessary."


As a result, the failure of the parties to reach an understanding in the present case does not mean that the Carrier violated the Agreement. Instead, Rule 2 requires a further inquiry to determine whether the Carrier met the limited exceptions that enable outside forces to perform such work, which the members of the bargaining unit historically and traditionally perform and which therefore constitutes scope covered work.

 The record indicates that the Carrier repeatedly asserted that the Carrier lacked sufficient manpower to perform the disputed work. The Organization failed to rebut this evidence. Furthermore, the record omits any evidence that any relevant employees were on furlough or otherwise available to perform the disputed work.

 The Carrier acknowledged in letters dated October 5, 1995 and October 7, 1995 that the "Carrier directed the claimants to test the welds to insure the work was performed to CSX standards and free of internal defects." Although the Claimants became available to test the welds, the Organization failed to prove the availability of the Claimants to perform the actual disputed welding work. As a result, the Carrier perforce lacked the employees with special skills to perform the disputed work.

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Under these precise circumstances and in the absence of sufficient evidence to the contrary, the organization failed to prove that the Carrier had violated Rule 2 of the Agreement. Any other provisions of the Agreement relied on by the organization lack persuasiveness in the context of the specific facts of the present dispute.

 AWARD:

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

Robert L. Douglas'

Chairman and Neutral Member


Donald Barthol4 Patricia A. Madden
 Employee Member Carrier Member

 Dated:
        --f


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