Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28733
 THIRD DIVISION Docket No. MW-28600
 91-3-88-3-427
 The Third Division consisted of the regular members and in
 addition Referee Robert W. McAllister when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Union Pacific Railroad Company (former (Oklahoma-Kansas-Texas Railroad Company

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

 (1) The Agreement was violated when the Carrier assigned outside forces to reshape drainage ditches and clean the right-of-way between Sunray and Addington, Oklahoma from August 10 through September 25, 1987 (System File MW-87-3-OKT/2579-OKT).

 (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 violations referred to in Parts (1) and/or (2) above, Machine Operators R. L. Pulley, D. A. Herbel, E. A. Baker and L. A. Coffman shall each be allowed two hundred eighty (280) hours of pay at their straight time rates."

 FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved Ln this dispute are respectively carrier and employes.5iiihin the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

 Parties to said dispute waived right of appearance at hearing thereon.

 On October 2, 1987, the Organization filed a Claim on behalf of the four Claimants asserting the Carrier had utilized-outside forces from August 10, 1987, through September 25, 1987, to operate a dozer, motor grader, backhoe, and front end loader to reshape drainage ditches, clean the right of way, and bury old tie butts. The Carrier maintains this Claim is without merit and has no Agreement support. It is the Carrier's position that for the Organization to prevail, it must show the disputed work has been performed customarily and traditionally at locations throughout the system to the exclusion of all other save Form 1 Award No. 28733
 Page 2 Docket No. MW-28600
 91-3-88-3-427
 Article IV of the May 17, 1968, National Agreement states in relevant
 part that:

The record establishes the Carrier gave no notice of its intent to use outside forces and as indicated defended its action by claiming the work involved cannot be shown to be exclusively reserved to the Organization. Apparently, the Carrier.rel performed by members of the Organization. This argument begs the underlying issue which essentially involves the intent to be given the phrase "... within the scope of the applicable schedule agreement." This Board has repeatedly held the above quoted phrase of ~Article IV of the 1968 National Agreement does not mean such work must be performed customarily and traditionally at all locations in the system by Board has consistently ruled that the phrase "within the scope of the applicable schedule agreement" right to assign work to different crafts and/or classes of employees. In other words, Article IV of the 1968 National .agreement cannot be read so as to infer that work within the scope means work reserved exclusively to the Organization by history, cus 23203, 24137 and 24280. As noted above, the Carrier's assertion that it has always contracted out such work was never rebutted. This is an Important consideration which indicat notice in accordance with Article IV of the 1968 National Agreement when it intends to contract out work which is within the scope of the schedule agreement as was the case her IV, it is advised to do so in a clear and unambiguous manner, thereby avoiding the Board's refusal to remedy the claimed violation. In summation, the evidence of record supports a violation of the provisions of Article IV of the 1968 National Agreement. The Organization's inability to rebut the Carrier's assertion the disputed work has never been performed by members of thR Organization causes this Board to deny the monetary remedy claimed.


Form 1 Award No. 28733
 Page 3 Docket No. MW-28600
 91-3-88-3-427
                          By Order of Third Division


Attest:
 Nancy J. r - Executive Secretary

 Dated at Chicago, Illinois, this 28th day of March 1991.

CARRIER MEMBERS' CONCURRENCE AND DISSENT

TO

AWARD 28733, DOCKET MW-28600

(Referee McAllister)


The Majority found that the "exclusivity doctrine" applies in disputes involving challenges to a Carrier's right to assign work to different crafts and classes of employees. While the finding was irrelevant to the issue in the case, it nonetheless is correct. While also irrelevant to the issue in the case, the Majority likewise could have found that the Board has consistently ruled that the "exclusivity doctrine" i,s applicable in contracting out cases where the sole issue is the right of the Carrier to contract out work. Third Division Awards: 28654, 27626, 27040, 24853, 23423, 23303, 20841, among many others.
 We do have difficulty however, in understanding the Majority's rationale in finding that notice was required. Even assuming, arquendo, that exclusivity need not be shown where the issue is one of notice, where, as here, the Majority found that not only has the Carrier contracted out the work involved in the past, but also, that the disputed work has never been performed by members of the Organizaion, it would appear to be obv even arguably covered by the scope rule and no notice is require .

    . F nger t` P. V. Varga


R. L. Hicks E. Yost

 M. C. Lesnik

LABOR MEMBER'S RESPONSE

TO

CARRIER MEMBERS' CONCURRENCE AND DISSENT

TO

AWARD 28733, DOCKET MW-28600

(Referee McAllister)


Without conceding that the exclusivity theory has validity in any type of case, it most certainly does not have any relevance to contracting out of work disputes. The Majority correctly found that "*** In other words, Article IV of the 1968 National Agreement cannot be read so as to infer that work within the scope means work reserved exclusively to the Organization by history, custom or tradition. ***" In othei words, work that has been customarily, historically and traditionally performed by members of the bargaining unit is not to be contracted out unless the Organization is notified and the Carrier can present evidence of probative value that one of the exceptions in the rule, which cannot be reasonably remedied by discussions with the Organization, apply.


The "rationale" for finding that notice was required even though the work was never performed by-members of the Organization is that the Majority recognized that the work was covered by the Scope Rule albeit the organization's lapse in challenging the contracting out of such work.


                                  Respectfully submitted,


                                  D. Dl Bartholomav~

                                  Labor Membe ~1r