STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, without prior notice to the General Chairman as required by Article IV of the May 17, 1968 National Agreement, it assigned the work of plowing ballast on the Alexandria Division to outside forces on Sunday, July 27, 1.969. (System File K-247-4777)
EMPLOYES, STATEMENT OF PACTS: Claimant W. R. Delacerda is a regularly assigned machine operator with a work week extending from Monday through Friday with Saturdays and Sundays designated as rest days.
On Sunday, duly 27, 1969, the Carrier assigned the work of plowing balast long the right-of-way fa·orn Mile Post 115 to Mile Post 118 to Contractor Raymond Blanks. The outside forces, who have no seniority whatsoever under the scope of this Agreement, utilized a motor grader similar to the Carrier's Motor Grader MG-4 in the pexfoxnance of this work. It has not been disputed 'that work of this character is encompassed within the scope of the Agreement and that it was assigned to outside forces without prior notice to the General Chairman as required by Article IV of the May 17, 1968 National Agreement which reads:
G. In handling the dispute on the property, the Organization assumed the most essential element of their claim, which was - to show the disputed work was included in the Scope of the applicable agreement - and simply contended the Carrier had the proper equipment and personnel to operate the equipment; and that under the rule of the MofW Agreement the Carrier was required to use the roadway machine operator to perform the disputed -work. However, the only rule cited was Rule 2, Seniority Rights.
In declining the claim, it was pointed out that the work was not covered by the Scope or any other rule of the agreement, but had been contracted to outsiders historically, as evidenced by a long established practice. In any event, the only off-track motor grader owned by the Carrier was in use at Weatherford, Texas, some 447 miles from the point where the alleged violation occurred.
OPINION OF BOARD: It is undisputed that Carrier failed to give the Organization 15 days' written advance notice prior to contracting out the work of plowing ballast on Carrier's right-of-way from Mile Post 15 to Mile Post 11$ to an outside contractor.
This issue was decided adversely to Carrier in Award 19153, and for the reasons stated therein, we find that Carrier did violate Article IV of the May 17, 1968 National Agreement in this instance when it failed to give said 15 days' advance written notice to the Organization prior to contracting out the work in dispute.
The Carrier never contended that this was not scope covered, work dcaxing the handling of dispute on the property. The Carrier's contention in this respect represents a new issue which was never raised on the property and, therefore, it cannot properly be raised now.
In regard to damages, since the Claimant was off duty and not working on the date of the work in dispute, he is entitled to the number of man hours equal to that expended by the outside contractor in the performance of the work in dispute at his time and one-half rate of pay.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, rinds and holds:
That the Carrier and the Employes involved in 'this dispute axe respectively Carrier and Employes within the meaning of the Railway Tabor Act, as approved June 21, 1934;