Frederick R. Blackwell, Referee


        (Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE: (Norfolk and Western Railway Company (Western Region)


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


        (1) The Carrier violated the Agreement when, without notice to or discussion and agreement with the General Chairman, it used outside forces to operate a tie tamping machine beginning on or about April 5, 1970 (System File MW-MOB-70-10).


        (2) Machine Operator Glenn A. Durbin be allowed pay at the tamper operator's rate of pay ($626.4349 per month) for the same amount of time expended by outside forces in the performance of the work referred to within Part (1) of this claim since June 20, 1970.


                      OPINION OF BOARD: This is an Article IV dispute arising under Agreement between the parties effective December 1, 1963.


        This dispute arose from the Carrier's need for the services of a tamping machine on the Carrier' from the Graystone Corporation and, because the Carrier had no operator available and qualified to operate the tamper, the Carrier also obtained the services of an operator from the Graystone Corporation.


        The claim is that Carrier's action violated the mandatory notice requirement contained in Articl merely amounted to the rental of a piece of equipment of a type and size which the Carrier did not have, together with an operator, all of which was consistent with past practice of which the Organization had not complained.


        The Agreement provisions involved in this dispute are Rule 1 and

        Article IV of the 1968 National Agreement which, in pertinent part, read as follows:


                "RULE 1


                These rules govern the rates of pay, hours of service and working conditions of all employees in the track sub-department and bridge and building sub-department of the Maintenance of Way and Structures Department listed in this rule,


    I


.. :: .
                        Award Number 19657 page 2

                        Docket Number MW-19628


            "jurisdiction of the track and bridge and building subdepartments of the Maintenance of Way and Department, but do not apply to supervisory forces above the rank of foreman.


            (d) Track and Bridge and Building Sub-department - Lines West of and including Detroit and Toledo:


                  Group 4. Matisa Tamper Operators.

                  Electromatic Tamper Operators.

                  Power Ballaster Operators.

                  Tile Master (self-propelled) Operators.

                  Spike Master Operators.

                  Track Liner Operators.


                        Group 8. Matisa Tamper Helpers Electromatic Tamper Helpers. Power Ballaster Helpers.


                        ~ ,t ~


            NOTE: When a new type of system machine is to be placed in operation, a representative of the railroad and the general chairman will confer regarding the seniority group into which the operator of the new machine will be placed, which will not necessarily be an existing seniority group.


            In event the operator is placed in an existing seniority group, men holding seniority in that group will be given the opportunity in seniority order to elect to qualify on the new machine."


            "Article IV of the May 17, 1968 National Agreement


            In the event a carrier plans to contract out work within the scope of the applicable schedule agreement, the carrier shall notify the General Chairman of the organization involved in writing as far in advance of the date of the contract transaction as is practicable and in any event days prior thereto,"


i
                    Award Number 19657 Page 3

                    Docket Number MW-19628


        We do not agree with Carrier's contention that procurement of the

equipment through a rental arrangement is somehow material to this dispute.
 The employees' rights under the Agreement concerns cork, not equipment, Award
 6905 (Coffey), so we must determine whether the operation of the Plasser Uni
 versal Tamper was within the scope of the Maintenance of Way Agreement. Al
 though the Plasser Tamper is not one of the tamping machines referred to in
 Groups 4 and 8 of Rule 1(d), the note thereto makes it clear that the use of tamping
 machines, in addition to those referred to, was contemplated by the parties in
 agreeing to the provisions of the Rule. From this we must conclude that the
 operation of a machine which performs the function of tamping is the coverage
 which was contemplated for Rule 1 by the parties; accordingly, we find that
 the performance of tamping work by the Plasser Universal Tamper machine was
 within the scope of the work covered by the Agreement. Once the disputed work
 is found to be within the scope of the Agreement, we believe it necessarily
 follows that the employees' rights are paramount to past practice and also that
 the use of an employee of the Graystone corporation to perform the disputed
 work comes within the purview of Article IV. The controlling consideration
 here is that scope covered work was performed on Carrier's property by an em
 ployee of an outside business concern, and it is no defense that the machine
 was rented and then operated under the supervision of Carrier rather than under
 supervision of an independent contractor. Award 16009 (Ives)

 We find therefore on the whole record that the Carrier violated Article IV when it failed to notify the Organization that it intended to use the Universal Plasser Tamper machine for tamping work on Carrier's property. Having made this finding we see no relevance either in Carrier's contention about not having a qualified operator or in Petitioner's contention that the Agreement required Carrier to train an operator. These are matters which the parties might have discussed under the procedures provided in Article IV, but they have no bearing on whether the Article IV notice should have been given in the first instance. The record does not show any wage loss by claimant, or lost work opportunity; consequently, in accord with prior decisions, we shall deny the compensation requested in Part (2) of the claim. See Award 19399 (O'Brien), 18305, 18306, 18687, 19305, et al.

        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 involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 19657 Page 4

                    Docket Number MW-19628


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

        That the Agreement was violated.


                      A W A R D


        Part (1) of the claim sustained; Part (2) denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 23rd day of March 1973.