Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29121
 THIRD DIVISION Docket No. MW-29211
 92-3-90-3-85
 The Third Division consisted of the regular members and in
 addition Referee John C. Fletcher when award was rendered.

 (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 the Carrier assigned outside forces (L 6 T Paint Contractors, Inc.) to paint the interior of the System Maintenance of Way Shop at Pocatello, Idaho beginning November 29, 1988 and continuing (System File 5-108/890211).

 (2) The Agreement was further violated when the Carrier failed and refused to timely meet with the General Chairman and make a good-faith attempt to reach an understanding concerning said contracting as required by Rule 52(a).

 (3) As a consequence of the violations referred to in Parts (1) and/or (2) above, furloughed B&B Painters G. L. Evans, S. L. Irvin and W. S. Wallace shall each be allowed pay at their respective rates for seven hundred four (704) straight time hours and forty-eight (48) overtime hours."

 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 in this dispute are respectively carrier and employes within 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.

On November 9, 1988, Carrier served notice on the Organization that it intended to contract out the work of painting the interior of its System

 MI
 aintenance of Way Shop at Pocatello, Idaho. The notice provided:
 Form 1 Award No. 29121
 Page 2 Docket No. MW-29211
 92-3-90-3-85
 "This is to advise of the Carrier's intent to
 solicit bids to cover the painting of the interior
 of the Pocatello, Idaho, Maintenance of Way Shop.
 Special equipment is required to access certain
 portions of this building."

 The Organization responded to the notice stating:
















Form 1 Award No. 29121
 Page 3 Docket No. MW-29211
 92-3-90-3-85
 The parties jointly reaffirm the intent
 of Article IV of the May 17, 1968 Agreement
 that advance notice requirements be strictly
 adhered to and encourage the parties locally
 to take advantage of good-faith discussions
 provided for to reconcile any differences.
 In the interest of improving communications
 between the parties on subcontracting, the
 advance notices shall identify the work to be
 contracted and the reasons thereof. (Underscoring
 added)
 In this connection you claim, 'Special equipment
 is required to access certain portions of the build
 ing.' However, you have failed to advise what the
 equipment in question; whether or not the Carrier has
 the equipment in its inventory; whether or not the
 Carrier can rent, lease or purchase the equipment;
 why the Carrier's own B&B forces cannot paint the
 interior as it has done in the past; and why, with
 only 'portions' of the building purportedly pre
 senting the problem, the Carrier is proposing to
 contract out the painting of the entire building.
 In view of these circumstances I cannot enter
 into an agreement with the Carrier at this time to
 allow it to contract the Maintenance of Way Depart
 ment work to outside forces. Provided the Carrier
 chooses to ignore this advice and intends to contract
 this work out in any event, I request a conference be
 scheduled and held prior to the work being assigned
 to and performed by a contractor, for the purpose of
 discussing the matters relating to said contracting
 transaction."

 The Carrier responded to the above with a suggestion that the requested conference be scheduled did not actually occur until December 22, 1988. The Contractor started work on the project on November 29, 1988, six days before the date first suggested by the Carrier for the conference requested by the General Chairman.

 Rule 52, Contracting, is the operative agreement provision involved here. It has been exhaustively reviewed in a plethora of Third Division Awards involving this Carrier and this Organization. In several of these Awards subcontracting notice requirements have been dealt with. In Third Division Award 23578, this Board rejected the notion that such notice was only required in situations where the disputed work was exclusively reserved to members of the Organization. In that Award the Board remarked:
 Form 1 Award No. 29121
 Page 4 Docket No. MW-29211
 92-3-90-3-85
 "The lack of a notice foreclosed the Organization
 from exercising its option to request a meeting to
 discuss the propriety of contracting the disputed
 work."

 Award 23578 was released shortly following the December 11, 1981 letter - offering assurances of carriers' good faith efforts to reduce subcontracting and increase t that the advance notice shall identify the work to be contracted and the reasons therefore.

 Award 23578 was followed by Third Division Award 26174 (to name but one in the intervening period). In Award 26174 the Board remarked:

Subsequently, 7otice matters were dealt with in Third Division Awards 26422 and 27011. In Award 27011 the Board directed the Carrier to provide notice of subcontracting in the future. It would be illogical to assume that "directing Carrier to provide notice in the future" merely contemplated pro forma compliance with Rule 52 and that other elements of the procedure associated with subcon the assurances and reaffirmation of intent expressed in the December 11, 1981 letter.

 While many of the Awards dealing with no notice (or a defective notice) did not provide a monetary remedy for the defect, Third Division Award 27570 (between these parties) did so. Two years later, in Third Division Award 28619, a monetary remedy was not provided, but the Board again directed:


Form 1
 Page 5

 Award No. 29121
 Docket No. MW-29211
 92-3-90-3-85

 And finally in third Division Award 28943 the Board sustained a claim and provided a monetary remedy when the Carrier failed to adequately demonstrate that it acted in go prior to the discussion meeting requested by the General Chairman.

 Thus it seems =:pat the language of the Rule, the December 11, 1981 letter and our prior Awards have established a standard whereby Carrier must give the General Chairman notice of all instances where maintenance of way work is to be contracted and must engage in good faith efforts "to reduce the incidents of subcontracting and increase the use of their maintenance of way forces."

 With this standard in place it is necessary to look at the record and make a determination if the required good faith effort was exhibited in the contract let for the painting of the Pocatello, Idaho, Maintenance of Way shop. Careful examination of this record fails to establish that any such good faith effort was attempted. In fact the opposite seems to be the situation. For one thing, :he painters available to do the work. For another Carrier has not supported its contentions that any special equipment was required in the project. Both facts were stressed by tie General Chairman upon receipt of the notice and at all times thereafter.

 But even so, to correspondence Carrier directed to the General Chairman on the subject, when fairly read, clearly manifest two points, the notice was only served =o generate pro forma compliance with the requirements of the Rule that a notice be given and that Carrier considers the assurances of the December 11, 198: letter (supra) to be absolutely meaningless.

 With regard to the first point, it is noted that on February 8, 1989, Carrier's Assistant Director Labor Relations candidly stated:

 "In this case since the work is not scope covered, the Company gave notice for informational only and not for bargaining purposes."

 And, with regard to the second point, when commenting on the General Chairman's reference to NRL ... will assert good-faith efforts to reduce ... subcontracting," the Assistant Director Labor Relations continued:

 "The above language is not actually contained in the body of the 1981 National Agreement. It is part of a side azreement establishing a standing committee to deal wit'= the subcontracting question. The abovequoted language appears to have been a quid pro relating to Eormation of the standing committee. That standing committee is no longer functioning and it has not teen renewed by any of the subsequent national agreements. The entire side agreement including the language quoted above is therefore now< Form 1 Award No. 29121
 Page 6 Docket No. MW-29211
 92-3-90-3-85
 simply a dead letter. Even if the now in active
 agreement were to be given any weight, the real
 significance is that it recognizes the right of the
 industry to subcontract, which right already existed

This Board does not view the December 11, 1981 letter in the same vein. It has been discussed in scores of our Awards involving this and other carriers. It is not "simply a dead letter" which can be ignored. The letter, inter alia, stressed good faith efforts to reduce the incidence of subcontracting and increas correct that it was a quid pro quo (the situation in most if not all labor - management accords) being a quid pro quo does not dilute its viability and in the circumstances present here Carrier is not entitled to enjoy the fruits of the bargain without adhering to the assurances of its Chief Negotiator, as memorialized within a formal document attached to and made a part of the 1981 National Agreement.

 This record does not demonstrate, in fact it does not hint, that good faith efforts of any type were advanced in a manner the Organization had been assured they would be in the December 11, 1981 letter. Accordingly the Agreement was violated. The Claim will be sustained. Claimants were furloughed painters at the time readily available to Carrier has been shown to have been required to complete the project. Accordingly Claimants are entitled to be compensated for the hours set forth in Part (3) of the Statement of Claim.




                          By Order of Third Division


Attest:
          cy J. a Executive Secretary


Dated at Chicago, Illinois, this 28th day of February 1992.

CARRIER MEMBERS' DISSENTING OPINION

TO

AWARD 29121, DOCKET MW-29211

(Referee Fletcher)


The Majority found that the Carrier had not complied with the Agreement when it served notice of its intent to contract out work; suggested a date to the Organization to meet to confer about its intent to contract out; and allowed the contractor to commence work prior to the date it set for the conference. The Majority further found that inasmuch as all named Claimants were furloughed at the time, a backpay remedy would be appropriate.
 If the Majority had contented itself with the unique set of circumstances of =he case, no dissent would have been necessary. Unfortunately, the Majority was not content, but instead, delivered a six-page peroration of the par forth its own views on the subject, it professes to base its conclusions on an analysis of prior Awards which have interpreted the Agreement. It is such professi dissent.
 There have been nearly two dozen Awards of this Board and Public Law Boards that have interpreted nearly every imaginable facet of the parties Agreement dealing with the subject of contracting out, including the good-faith responsibilities of the parties. The prior Awards do not support the Majority's declarations. Indeed, prior Awards have found the evidence of contracting out to be so compelling, that backpay was denied to furloughed employees even when no prior notice was served.
 Carrier Members' Dissent
 Award 29121, Docket MW-29211
 Page 2

 Third Division Awards: 27011, 28619, 28622, 28623, 28789. Indeed, in another contracting out dispute between these parties, the Board denied the Claim notice was provided. Third Division Award 28610.
 The purpose of this dissent is not to debate the issue here but simply to go on record as registering our strong disagreement with the Majority's characterizati Fortunately, for the Carrier, the prior Awards speak very clearly for themselves.

                          M. W. Fin'gerh


                          'R. L. Hicks


                          M.~snik


                          P. V~. Varga


                          J. E. Yost

LABOR MEMBER'S RESPONSE

TO

CARRIER MEMBERS' DISSENTING OPINION

TO

AWARD 29121. DOCKET MW-29211

(Referee Fletcher)


The Majority was correct in its ruling in Docket MW-29211 and nothing present in the Carriers' dissent distracts from the correctness and precedential value of this award.


The dissent attempts to portray this claim as containing a unique set of circumstances. The only unique thing about this claim and the subsequent award is that an arbitrator finally interpreted the language of the Agreement as written. There are literally hundreds of claims before this Board where the notice issue is involved and until the rendering of this award, some arbitrators had taken a very lenient approach to enforcing the clear and unambiguous language of the rule.


The dissent goes on to contend that the Majority's interpretation of prior awards is incorrect based on the compelling evidence of a past practice of contracting by the Carrier. What the Majority obviously recognized in this case was that past practice is not established by mere lists of dates and locations. What the Majority further recognized in this case was that a past practice can not abrogate the clear terms of an agreement. If the parties had intended to negotiate an agreement without meaning,

Labor Member's Dissent
 Award 29121
 Page Two

they would not have bothered to put pen to paper. In any event, regardless of any perceived past practice, the Organization put the Carrier on notice in 1981 that the notice provision was to be enforced. Because the Carrier is using the same arguments now that it used then, it is only appropriate that an award was finally rendered to enforce the Agreement.


The contracting provisions of the effective Agreement as amended by the December 11, 1981 Letter of Agreement were properly evaluated, the characterization of the prior awards is correct and it is finally evident that the terms "good faith" and "notice", to name but two, have meaning. The award is correct and stands as precedent.


                              Respectfully submitted,


                              D. D. Bartholoma

                              Labor Member