Joseph A. Sickles, Referee


                (Brotherhood of Maintenance of Way Employee

PARTIES TO DISPUTE:
                Denver and Rio Grande Western Railroad Company


STATEN= OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned snow removal work between Ploy and Cedar, Utah to outside forces beginning February 5, 1979 (System File D-13-79/MW-26-79)·

 (2) The Carrier also violated Article IV of the May 17, 1968 National Agreement when it did not give the General Chairman advance written notice of its intention to contract said work.

 (3) As a consequence of the aforesaid violation, furloughed Road Equipment Subdepartmeat employees N. N,McDoaaid, D. R. Deniers, E. Nee, F. L. Duboue, J. D. Horan, W. M. Hays sad M. R. Cordova each be allowed pay at their respective rates for as equal proportionate share of the total number of manhours expended by outsid
OPINION OF BOARD: The Organization claimed that the Carrier violated Article
 IV of the May 17, 1968 Agreement - among other Rules - when it contracted out the plowing of snow off of access roads along the right-of-way and the Claimant sought equal proportionate abates of the compensation concerning the time worked by employee of the contract firms.

 In addition to as assertion that the work in question had customarily been performed by the road equipment sub-department, the Organization asserts that the Carrier did not notify the Organization of its intention to contract out the work.

 The Carrier conceded that cammenciag on February 5 it began contracting out the grading of snow from the roads along the railroad right-of-way sad that it used a contractor because all of the Carrier's snow removal equipment was working in snow removal. Although there were several operators on a layoff status at the time there were no machines available for said employee to operate. In the initial denial the Carrier concluded that the snow "had to be removed at this time and, therefore, see no justification for this claim as it was an emergency".

 In response to the initial denial the Organization asserted that there was available equipment and is any event it is not uncommon for the Carrier to lease machinery and have its owe employee operate same.
                          Award Number 24137 Page 2

                        Docket Number N&I-23870


The question of exclusivity of~performance was raised by the Carrier on the property and the Carrier urges that there is no obligation to give notice of intent in such a case.

 After a cumber of items of correspondence had been exchanged, the Carrier raised the question that the Organization had not identified the Claimants; but promptly thereafter, the Organization complied by specifying the identity of the individuals involved.

 We find it unnecessary to explore the question of exclusivity because it has bees long established that when a violation-of Article IV of the May 17, 1968 National Agreement is at issue it is only necessary to establish that the work in question is within the scope of the applicable Agreement - whether or not it is performed exclusively by the bargaining snit employee. See Award 19899, end consistent Awards cited therein. Awards to the contrary era not persuasive.

 Whether or not the existence of a heavy snow circumstance is the geographic area in question can be considered as emergency my very well be open to debate in another case. Suffice it to say in this instance that we feel that the Carrier had as obligation under Article IV to bring the matter of contracting out to the attention of the General Chairman. To be sure, in a given case, a Carrier might be excused for failing to afford a full fifteen (15) day notice (a matter cot decided is this case) but here we feel that a failure to make nay effort to give any notification is a clear violation of Article IV cad we will sustain the claim.

 The identity of the Claimants was established while the matter was still wader consideration on the property and the assertion that the Claimants were not properly identified is, in our view, not properly before us acs is the question of "full employment" due to the assertion that the Employee is question were working at the time. See Award 19899.

        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 Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        That the Agreement was violated.

                        Award Number 2413? Page 3

                        Docket Number M&I-23870

                        A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMNT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


y
        Rosemarie Breach - Administrative Assistant


Dated at Chicago, Illinois, this 27th say of January 1983.

DIS&M OF CARRIfiR MMMS

TO

AWARD 24137 Doer pat-23870

e arse . S c es


For the same reasons expressed in our Dissent to Award 19899, dissent to this Award is required.

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