i


OPINION OF BOARD: The essential facts involved in this dispute are
 not in issue. On or about December 1, 1970, em
 ployees of an outside contractor, WABCO, commenced work on Carrier's
 property of installing a Centralized Traffic Control (C.T.C.) system
 to replace the existing automatic block signal system. The new
 traffic control system was to be installed between Mile Posts 23.9
 and 66.5 on Carrier's Holly Subdivision with the main terminal lo
 cated at Pontiac, Michigan. On January 22, 1971 Petitioner initiated
 the instant claim on behalf of ten claimants comprising the Detroit
 Division Floating Gang; contending that Carrier's use of WABCO for
 C.T.C. installation at Pontiac violated the Scope and other rules of
 the Agreement between the parties. The Scope rule reads as follows:

Carrier does not deny that the work in question is covered by the Scope rule but posits inter alia, that (a) It was under the impression that the Organization had acquiesced in April 1969 to its proposed subcontracting of the C.T.C. work (b) The Carrier has the right to contract out work involving considerable undertaking of great magnitude where its own forces do not have the capacity to perform said undertaking.

 As to Carrier's belief that Petitioner, on the basis of an April 1969 discussion of the C.T.C. project, concurred in the subcontracting decision, the record be Indeed the record indicated a misunderstanding by Carrier of Petitioners position prior to the contr contracting out, efforts by Carrier to reach a formal ex post facto agreement with Petitioner regarding the import and effect of the contracting out upon the Detroit Division Floating Gang. Accordingly, irrespective of Carrier's good-faith misunderstanding and efforts to achieve agreement, we find that Petitioner did not acquiesce in the contracting out.

 Carrier -further contends that it had the right to contract out the work in question because it could not have performed the C.T.C. installation work at Pontiac with its existing forces without incurring an unreasonable amount of overtime and requiring its Floating Gang signal forces to work such amount efficiency and safety. Carrier asserts that Awards of this Division


permit contracting out in such situations. Carrier is thus raising an affirmative defense and the burden is upon Carrier to prove such defense by competent evidence on the record.

 The uncontroverted record shows that the project in question took over nine months to complete d forces worked some 18,500 straight time hours. Petitioner does not deny that claimants were otherwise occupied during this period, but asserts that Carrier should have added four men to the Floating Gang and worked the Gang two hours overtime each day Monday through Friday as well as 9 hours overtime each Saturday and Sunday until the project was completed. Such a schedule would have required each member of the Floating Gang to work 68 hours per week (seven days oer week - 5 days of 10 hours and 2 days of 9 hours) for some nine months. In these circumstances we are guided by the countervailing principles enunciated by this Division in Award 3251, quoted with approval in Award 9675:

This is not a case where Carrier has sought to abrogate the Agreement by arbitrarily and unreasonably contracting out work to persons outside the Agreement with employees. Moreover, the record before us supports Carrier's contention that this was an undertaking the claims are denied.


        rT-;DT_:;CS: -lie T:;ird Division of the Adjustment Boards upon the whole record and all the evidence, finds and holds:


        That tile parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier ar_d Erp1oye the Railway Labor Act, as approved ,Tune 21, 1934;

 That this Division of the Ad'ustment Board has jurisdiction over the dispute involved herein; an
        The Agreement was not violated.


                    A Td A a D


                Claims denied.


                        NATIONAL RAIL.RC:,,D .1D.Tt?Sr?~·^~^, Rna~n

                        By Order o. 1h7.~d

                        1V1J1Vn


AT"'lECT:
 ~cxecut_ve Sezrerar~

 'Dat;:d at Chicago, Illinois, this 29th day of `arch 1974.
          Diesent to Award 20202 Docket SG-19834


The ::ajori_:· has once again written into the qgreement of the parties an exce=ion which they did not enter during their negotiation. Az"ard 20202 n.".= "'IN' others in rorhich -,U-lh re-smiting of A
 greements is undertaken '7;; ~~ua-rely into the face of our accepted rule that this Board will not =0 so.

    Award 20202 is in error and I dissent.


                                  i ..

                                  W. W. Altus, Jr.

                                  Labor i.:erber