NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION

 William M. Edgett, Referee

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned the work of rehabilitating its tracks between A&S Crossing at McKinley and Mont, Illinois to outside forces.

 (2) The claimants* be allowed pay at their respective rates of pay for an equal proportionate share of the total number of man hours expended by outside forces in the performance of the work "referred to within Part (1) of this claim. (This claim contemplates that pay for the time expended by outside forces during the claimants' regularly assigned work period will be allowed at the claimants' respective straight time rates and that pay for all time expended by outside forces outside of the claimants' regularly assigned hours will be allowed at the claimants' respective overtime rates.)

 (3) The Carrier shall also pay the claimants six percent (67.) interest per annum on the monetary allowances accruing from the initial claim date until paid.

 Award Number 19337
 Docket Number MW-19270

 * Foremen
C. L. Johnson
 Charles Logsdon
 R. E. Stephens
 T. L. Hitchcock
 J. C. Desper
 K. M. Oberkfell
 R. B. Carrizales
 M. Gryant
 C. B. White

 Asst. Foremen
James Samelton
 W. M. Tyler

 Speed Swing Operators
W. Palm
 J. F. Marion

 Tractor Backhoe Operator Laborers

 R. D. Frey

 Track Machine Operators
D. Lawrence
 A. Wigfall
 G. Daniels

 G. Scholernd R. Kress P. Cruthird

 E. D. Dancy
 Willie Robinson
 V. T. Frazier
 Robert Williams
 Spencer Wilson
 Herbert McCray
 F. T. Boyer

 David Ingle
 Hulett Borders
 Ivory Wilson


        D. Patton W. Thompson

        R. L. Keel Leroy Trappey

        R. A. Kilduff Richard L. Coy

        L. D. Harnetiaux C. Whaley

        Jack Stewart J. Carter

        J. Whaley

        D. Laurie

        Truck Drivers

        Crane Operator

        H. Johnson

        0. Wall L. G. Ott

        C. Patton

        C. Adams


OPINION OF BOARD: Carrier found it necessary to reconstruct fifteen and one
 half miles of its road. (The record also states the figure
 at thirteen and one half miles.) It decided to use outside forces for this work
 and advances the following reasons for the decision; ins·ifficient engineering and
 management staff, lack of equipment for the job, insufficient forces in its Main
 tenance of Way Department.

 The claim is based upon an alleged violation of Rule 1 - Scope, Rule 2 - Department Limits and Rule 3 - Classification. Carrier resists the claim on the grounds that the Scope Rule is general and the required proof of exclusive right to per is not applicable and that since it lacked staff and equipment it could contract out within a recognized exception to the Scope Rule.

 The Board has examined the applicable Rules and Carrier's defenses and concludes that the claim must be sustained, as later set forth. Here we are not dealing with a general Scope or Classification Rule:

        "RULE 1 - SCOPE


        The rules contained herein shall govern the hours of service, working conditions, and rates of pay of all employes in any and all Sub-Departments of the Maintenance of Way and Structures Department, represented by the Brot


                A. Roadmaster, Assistant Roadmaster, Supervisor, or those of higher rank.


        Note: All work coming under the jurisdiction of the Maintenance of Way Department will be perfor covered by this Agreement."

                  Award Number 19337 Page 3

                  Docket Number NW-19270


        "RULE 3 - CLASSIFICATION


        (e) All work in connection with construction, maintenance or dismantling of roadway and track, s laying, tie renewals, ballasting, lining and surfacing track, ditching, sloping and widening cuts and banks, mowing and cleaning, loading, unloading and handling all kinds of track material and all other material incident thereto, snow fences, shall be track work and shall be performed by employes of the Track Sub-Department."


These Rules make it clear that the work performed by outside forces was reserved to Claimants. Unless Carrier can rely on exceptions to the rule, it was a violation of the Agreement 9335, held that Carrier may call in outside forces where "special skills, equipment or materials are or involves a considerable undertaking." The Board has also held that Carrier has the burden of proving the facts supporting its reliance on this affirmative defense. (Award No. 12961 and Awards cited therein.) This burden is not met by simply alleging its inability. Carrier must show that it has the alleged insufficiency in staff, equ attempt to overcome it. This may mean an attempt to procure equipment on a reasonable rental bas augment staff by the use of consultants in engineering or management. No effort in this direction was made. It may mean an attempt to employ additional personnel. This was not trie inability, and on the exception to the Rule, but did not consider the need to make a good faith effort to accomplish the work with its employes. Therefore its reliance on the Rule exc that Carrier has contracted out other work is of no avail.

 Damages for violation of a collective bargaining agreement should adhere to a "make whole" principle. As is the case with other general rules this one is subject to exception. In the instant case refusal by the Board to award damages would effectively rewrite the Agreement, for in practice it would then say that Carrier is at liberty to contract out work reserved by the Agreement to its employes at anytime all state, and the Board should not interpret it in a manner which makes it do so. There was unquestionably lost work opportunity to Claimants in the decision to use outside forces to perform work which is reserved to them by the Agreement. It is the Boards' obligation, and right, to provide a remedy for the loss. After a careful review of the record the Board has determined that the loss of work opportunity for each of the named claimants, amounts to twelve hours at the applicable straight time work in question.
                  Award Number 19337 Page 4

                  Docket Number MW-19270


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes _zvolved in this dispute are respectively Carrier and Employes within the meaning of the railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved hercin; and

        That the Agreement was violated.


                      A W A R D


Part (1) of the claim is sustained. Part (2) of the claim is sustained to the extent stated in the Opinion. Part (3) of the claim is denied.

                            NATIOFAL RAILROAD ADJUSTMENT BOARD

                            3y Order of Third Division


        ATTEST: Executive Secretarv


        Dated at Chicago, Illinois, this 14th day of July 1972.