(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The Agreement was violated when, without prior notice to the ,,eneral Chairman, outside forces were used June 4, 5, 8, 9 and 10, 1970 to clean debris from track and right-of-way between Plan_port and Newman, New Mexico (System File MofW 152-733).

 (2) Extra Gang Foreman J. W. Conyers and Laborers Aicardo Jimenez, Francisco Aguirre and Abraham Jimenez each be allowed forty (40) hours' pay at their respective straight time rates because of the aforesaid violation.

 OPINION OF BOARD: Claimants are Extra Gang Foreman and three laborers. The
 Petitioner contends that 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 contracted the work of cleaning debris from the track right-of-way between Planeport and Newman, New Mexico. Contractors' forces were used to accomplish the work on June 4, 5, 8, 9, and 10, 1970.

 The Carrier, while conceding that it did not give the notice required by Article IV, denies any Carrier initially raised the argument that the work in question was performed by contract "due to an emergency", but failed to support this contention with any evidence. Carrier further argues that the Scope Rule of this Agreement has repeatedly been the work in question exclusively to the employees covered by the Agreement. Carrier persuasively arguer, that Carrier's right to contract wit work was carefully preserved by Article IV;

In a series of Awards, starting with 18305, we have held that the phrase in Article IV "work within the scope of the applicable schedule agreement" does not require t covered by the Agreement. We reaffirm this reasoning. We have found in an earlier case (Award 7583) that the work in question has been performed by employees covered by this Agreement-. (but not necessarily exclusively).
                    Docket Number MW-19597


Carrier contends that no monetary damages have been proven by Petitioner. No mention of this issue on =he property is evidenced by the record. In a related case, we dealt with this issue (Award 13349):
          "rhe burden is upon employe to show what his loss has been. But upon showing ~ha."_ lie has sustained a loss of certain work and what that work was lie has overcome this burden. If the Carrier wishes to show :n mitLgation that the employee received ot'ier in=ome, tho burden of proof is upon the Carrier. Furth-=r, in a raac s:ich as this where the employee could have done th=, work 3t more than one time the Carrier imist s':ow that the employee was employed at all tine.; wh=n 'i= co·ild reasonably have done the

          ~i work.


Sin-,e Carrier has presented no evidence on the property that Claimants were employed juring the contractor's activities, We ;r13t reject Carrier's contention with respect to 'art 2 of the CLaim (See Awards 18030, 19028 and 19578).

        FINDINGS: Tha Third Division of the Adjustmen`_ Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carri=_r and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved Jun= 21, 1934;

 That this Division o' _ the Adj-istment Board has jurisdiction over
 the dispute involved herein; and

        That the Agreement was violated.


                    A W A R -T)


        Claim s·istained.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chica.-o, Illinois, this 30th day of April 1973.