(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT 0? CLAIM: Claim of the System Committee o_° the Brotherhood that:

 (1) The Carrier violated the Agreement when, without advance notice to the General Chairman as required by Article IV of the May 17, 1968 National Agreement, it assign:d the work of cutting ballast from the ends of the ties near Alexandria, Louisiana to outside forces (System File 3334).

 (2) Roadway Machine Operator W. R. Delacerda be allowed pay at his straight time rate for a num5er of hours equal to that expended by the outside forces in the performance of the work referred to within Part (1) of this claim beginning on Decembar 1, 1969.

 OPINION OF BOARD: Claimant W. R. Delacerda holds and maintains seniority as
 a roadway machine opera=or of February 13, 1956 as displayed
 on the 1969 Seniority Roster for Roadway Machin_ Operators and Helpers of the
 Texas and Pacific Railway.

 Since December 1, 1969, a contractor's employe.has been cutting ballast away from the end o°_ the ties naa- Alexandria, Louisiana. This contractor's employe hol
Th= Employes contend that the work referred to above belongs to the Maintenance of Way Evpl3yes in the Roadway Machine Department and they submitted a claim on behalf of Mr. Delacerda for payment amounting to the number of man hours used by the contractor to plow ballast from the ends of the ties beginning December 1, 1969, which, according to Carrier, amounted to two dates of eight hours each.

 The Petttioaer argues that Carrier violated the Agreement, when without advance notice to the General Chairman as required by Article IV of the May 17, 1968 National Agreement, it assigned the work of cutting ballast to an outside contractor's employe. Article IV reads in part as follows:



Article IV maces it clear that notice to the General Chairman is necessary only when the work Carrier plans to contract out is "within the scope of the applicable schedule agreement."

 The record persuades us that the work which is the subject of the claim falls within the ambit of the Agreement. We note, among other things, that Claimant's equipment was capable of performing the disputed work and that Claimant had performed similar work in the past.

 Carrier, however states that the Scope Rule is general in nature, and that the Employes, to support their claim, must prove that they have performed the work exclusiv judgment, Carrier's contention was laid to rest in Award 18305 (Dugan). This Award, followed by others, holds that past practice is not controlling when, as here, we are concerned with a violation of Article IV of the May 17, 1968 Agreement. Award 18305 says in pertinent part:

        "The first paragraph of said Article IV deals with the contracting out of work 'within tha scope of the applicable schedule agreement'. It does not say the contracting out of work reserved exclusively to a craft by history, custom and traditon. This Board is not empowered to add to, subtract from, or. alter an agreement. We therefore conclude that inasmuch as Maintenance of Way Employes have in the past perfo work as is in dispute here, then said work being within the scope of the applicable Agreement. before us, Carrier violated the terms thereof by failing to notify the General Chairman within 15 days prior to the con of said work. In reaching this conclusion, we are not asserting that the work here in question cannot be contracted out later after the giving of the requ We are only saying that since the work in question came within the scope of the Maintenance of Way Agreement, Carrier was obligated to give said advance notice. Failing to do so, Carrier violated the terms of A of the May 17, 1968 National Agreement governing the parties to this dispute."


When Carrier failed to give advance notice to the General Chairman of its plans to contract out the work of plowing ballast away from the ends of ties, in the case before the Board, it violated the clear and unambiguous provisions of Article IV.
                    Award Number 19635 Page 3

                    Docket Number MW-19440


We now come to the matter of whether the violation warrants an award of damages. It is clear that the Organization was deprived of the right to bargain and that we do not know what success, if any, the General Chairman would have had in getting additional work for his men if Carrier had lived up to its agreement. A number of prior awards hold that where no specific earnings loss can be shown to damage award is permitted. Awards 1830.5 (Dugan), 18687 (Rimer), 18773 (Edgett), 18714 (Devine) and others.

 If the Board follows these prior awards it will be holding in effect that a Carrier may violate with impunity the provision; of Article IV and be subject only to a verbal wrist slapping by the Third Division.

 Where the Carrier's wrongful act of contracting out work without notification to the Employees in breach of contract may have led to an injury, and the facts are in such a state that neither the Organization nor the Carrier can conclusively prove that an injury did or did not o=cur as a result of the breach, who should suffer from the difficulty of proof? As one Arbitrator put it, should it be the wholly innocent employees or the employer whose breach of contract has created the possibility of injury? Past awards require the employees to endure the consequences of Carrier's breach but it would seem wiser for the Board to chart a new course less favorable to the initiator of the wrongful act.

        In Award No. 16 of Public Law Board 249 (Bailer) that Board said:


        "It may be that no employees covered by the Schedule Agreem=ent were available to perform this work, as Carrier now contends, but this is not a valid reason for depriving the Organization of its procedural rights under the abovecited Article IV. We will therefore sustain the extent of one-half the amount of compensation requested for each of the claimants."


The Board believes that many prior awards may have the result of discouraging good faith compliance by the Carriers with contractual provisions when they know that non-compliance makes damage proof difficult. In the light of all the circumstances, we sustain the claim to the extent of one-half the amount of compensation paid to outside forces for the work of cutting ballast near Alexandria, Louisiana, which work conunenced on December 1, 1969.

 i
                    Award Number 19635 Page 4

                    Docket Number MW-19440


        FIND1iY;S: The '1 'bird 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 involved in this dispute are respectively C--crier and Employes within the meaning of the Railway Labor Act, as app;:uv::d June 21, 1934;

 Tint tuts Divisi.nn of the Adjustment Board has jurisdiction over the di;hutc ;1:vu!ved herein; and

        Th: t the Agreement: was violated.


                    A W A R D


        Chin sustained to the extent indicated in the Opinion of the Board.


                        NATIONAL RAILROAD ADJUSTTfENT BOARD

                        By Order of Third Division


ATTEST: -·.
        Excc~iLive Secretary


Dated at Chicago, Illinois, this 27th day of February 1973.