(Brotherhood of Maintenance of Way Fbtployes
 PARTIES TO DISPUM:
 (Term-l Railroad Association of St. Louis

 STATFME?iT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned the work of completing construction and/or erection of a pole barn at Madison, Illinois to outside farces beginning April 26, 1979 (system File T RRA 197933/013-293-16).
(2) The Carrier also violated Article IV of the May 17, 1968 National Agreement when it did net give the General Chairman advance written notice of its intention to contract said work.

 (3) As a consequence of the aforesaid violation, B&B Gang Leaders 0. Guion and L. V. Gann and B&B Mechanics D. M. Morton, E. R. Harper, F. Lloyd, D. F. U17rich, T. Holmes, J. Roberds, R. j. Harris, W. E. Jackson, A. Themes and R. Scott each be allowed pay at their respective rates for an equal proportionate share of the t
OPINION CF BOARD: There is no disagreement between the parties that the Carrier
 contracted out work in connection with the construction of a
 pole-barn without first notifying the Organization is writing of its intention to
 do so not less than 15 days prior to the contracting transaction as is required in
 Article IV (contracting out).



In the instant matter, the erection of the pole-beta was started on March 15, 1979 by the carrier with its era employees. On April 10, 1979 Bart of the structure collapsed and three of the employees were injured.

 The Carrier alleges that the General Chairman was notified is a telephone conversation on April 11, 1979 of its intent to contract out the work. The Organization denies that the phone conversation did
                        Docket~Number hb1-23862


any more than notify the Organization of the accident with a further discussion of what might happen. The Carrier also indicates a meeting was held to discuss the matter eight days print to the contractors beginning work.

 It is noted that the requirement is that notice be made in writing no less than 15 days prior to the contracting transaction. The Carrier indicated that the reason it did not give the written notice is because it did not went to delay its actions. One must, therefore, assume that the contracting transaction, namely the execution of a contract with the outside construction firm, occurred prior to the date of the alleged meeting. There is no reference to the alleged meeting by the Organization on the record nor is it alleged that it was a conference as is contempla the Organization.

 The awards cited to this Board support the proposition that Article IV does require notice to the Organization or Article IV has been violated. In this matter the Carrier is making the distinction between as oral notification and a written notification. This Board need not cite the long line of awards which have upheld that the requirement ~a an agreement that a notice be is writing will be strictly adhered to. We find, therefore, that the Carrier violated Article IV by not notifying the Organization is writing of its intention to contract out the work involved.

        From here on the awards differ. Many support the proposition that `-

even with such a violation of Article IV a claimant will not succeed unless
 there is s shoaling of actual loss of pay on the claimant's part. The opposing
 line of roses allege that to limit damages only is such actual losses situations
 would is effect give a Carrier license to ignore the sub-contracting out provisions
 of an agreement bemuse of the absence of actual loss and payment is a matter such
 as this.

 In attempt to reconcile these two opposing views, Award 21646 resulted in the conclusion that each rose must be considered on its merits taking into consideration such fac
We have gone through the exercise of attempting to determine motivation or intent on the part of the Carrier. It is a tortuous subjective consideration. While it may indeed have its application is other aspects of this Board's activity, to apply it is the instant matter only adds a new element of uncertainty in the relationship of the parties. We are of the opinion that it would serve a better purpose in the long run to make a decision which clearly provides a guideline for the pasties is the future and with that is mind, we have reviewed the awards on both sides of the issue of the requirement of actual losses prior to the awarding of damages. We have concluded that there is no prohibition from awarding damages when there were not actual losses of pay. We also find, that in order to provide for enforcement of the agreement sad in particular this provision that the only way it can be effectively enforced is if a claimant or claimants be awarded damages even though there are no actual losses is as instant matter. To do otherwise would authorize the ignoring of this provision by the Carrier. 'We are aware that the application of this principle may muse a harsh result in some instances. The Carrier may feel that t law. if we were to attempt `..o inject the principle of the intention of the parties in this type of matter in order to relieve the Carrier, we would only encourage
 Award. Number 23928
 Docket Number MW-23862

 Page 3

 the ignoring of this provision and encourage the.establishment of lengthy records showing the motivation that led to the violation of the provision of the agreement. We will, therefore, find for the claimants, to the extent that they shall each receive compensation for an equal proportionate share of the amber of hours contracted out by the Carrier.
        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 thin dispute are respectively Carrier sad Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

 That the Agreement was violated.

 Claim sustained.

 ATTEST: Acting Executive Secretary
        National Railroad Adjustment Board


NATIONAL RAILROAD ADJLS24WT HOARD
 By Order of Third Division

 By ,,~wGIW
      o emarie Branch - Administrative Assistant


Dated at Chicago, Illinois, this 30th day of June 1982.