Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29158
 THIRD DIVISION Docket No. MW-28125
 92-3-87-3-701
 The Third Division consisted of the regular members and in
 addition Referee Edwin H. Benn 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 Carrier violated the Agreement when it assigned outside forces to perform roofing work on the Roundhouse, Store Department Office and Locker Room area located in Eugene Yard, Eugene, Oregon beginning January 2, 1986 (System File 152-1043).

 (2) As a consequence of the aforesaid violation, furloughed B&B Foreman C. L. Bowman and furloughed B&B Carpenters F. A. Schmitter, J. A. Dingrando, C. L. Duwell, V. A. Kivett, G. R. Szekely, R. J. Kohansby and G. V. Duwell shall each be allowed one hundred seventy (170) hours of pay at their respective straight time rates and forty (40) hours of pay at their respective time and one-half 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 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.

By Notice dated November 5, 1985 ("Notification No. 69"), the Carrier advised the Organization that:




Form 1 Award No. 29158
 Page 2 Docket No. MW-28125
 92-3-87-3-701

 By letter of November 13, 1985, the organization requested a meeting for clarification and further stated that the covered employees were fully qualified to perform the work. That meeting did not resolve the dispute to the Organization's satisfaction. Acme Roofing Company performed the repairs during the period January 2, 1986 through January 25, 1986. This claim followed on February 24, 1986. The Organization asserts that during this period Acme used one foreman, seven roofers and worked 10 hours per day for 21 days for a total of 1,680 hours.

 During the handling of the claim on the property in its letter of February 24, 1986, the Organization cited other instances where B&B employees performed reroofing work. W Carrier did not possess the equipment for this work, the Organization pointed out that:

,t












In its letter of December 19, 1986, the Carrier maintained that the Scope Rule was general and throughout the life of the Agreement and for many years before, outside contractors have performed similar work. The Carrier
 Form 1 Award No. 29158
 Page 3 Docket No. MW-28125
 92-3-87-3-701

 further cited five instances during the period January 9, 1985 through September 8, 1986 wherein outside contractors performed roofing work without objection by the Organi existed. The Organization responded by letter of August 26, 1987 referencing statements from employees asserting that they performed re-roofing work in the past.












Form 1 Award No. 29158
 Page 4 Docket No. MW-28125
 92-3-87-3-701
 "During negotiations leading to the December 11,
 1981 National Agreement, the parties reviewed in
 detail existing practices with respect to contracting
 out of work and the prospects for further enhancing
 the productivity of the carrier's forces.
 The carriers expressed the position in these
 discussions that the existing rule in the May 17,
 1968 National Agreement, properly applied, adequately
 safeguarded work opportunities for their employees
 while preserving the carriers' right to contract out
 work in situations where warranted. The organiza
 tion, however, believed it necessary to restrict such
 carriers' rights because of its concerns that work
 within the scope of the applicable schedule agreement
 is contracted out unnecessarily.
 Conversely, during our discussions of the car
 riers' proposals, you indicated a willingness to
 continue to explore ways and means of achieving a
 more efficient and economical utilization of the work
 force.
 The carriers assure you that they will assert
 good-faith efforts to reduce the incidence of sub
 contracting and increase the use of their maintenance
 of way forces to the extent practicable, including
 the procurement of rental equipment and operation
 thereof by carrier employees.
 The parties jointly reaffirm the intent of
 Article IV of the May 17, 1968 Agreement that ad
 vance notice requirements be strictly adhered to and
 encourage the parties locally to take advantage of
 the good faith discussions provided for to reconcile
 any differences. In the interests of improving com
 munications between the parties on subcontracting,
 the advance notices shall identify the work to be
 contracted and the reasons therefor.

 After review of the record, we find that the Organization has demonstrated a violation of the Ag affirmative relief will be required.
 Form 1 Award No. 29158
 Page 5 Docket No. MW-28125
 92-3-87-3-701

 First, the mere fact that the Carrier gave advance notice to the Organization of its intent to contract out the disputed work is not an admission of a violation of t Award 27608 ("the fact that the Carrier gave notice to the Organization that it intended to contract out the work is not a fatal admission..."). The merits of the Organization's claim must rise and fall upon the strength of the facts and the language of the Agreement concerning when the Carrier can contract out work.

 Second, the Carrier's argument that the Organization has not shown that the covered employees performed re-roofing work on an "exclusive" basis does not dispose of the matter. On its face, Article IV does not specifically provide that the disputed work must be exclusively performed by the employees. Rather, Article IV addresses "work within the scope of the applicable schedule agreement" and does not refer to work that is "exclusively" performed by the covered employees. Based upon our reading of the Scope Rule and the statements of the employees that are satisfied that the re-roofing work at issue was "within the scope" of the Agreement.

 Third, but Article IV also states that "Nothing in this Article IV shall effect the existing rights of either party in connection with contracting out" and the Carrier that the organization is obligated to demonstrate exclusivity. See e.g., Third Division Awards 25370, 23303. However, we are also not satisfied that those Awards dispose of the matter. A reading of those Awards show that the incidents giving rise to the claims in those cases occurred prior to the December 11, 1981 Letter of Agreement which provides that the Carrier "will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of [its] ma including the procurement of rental equipment and operation thereof by carrier employees." The dispute in Award 25370 arose during the period November 10, 1980 through January 9, 1981 and the dispute in Award 23303 covered the period April 21, 1978 through May 11, 1978. Given the parties' further agreement set forth in their December 11, 1981 letter, we cannot find under the circumstances of this case that th
Fourth, the record sufficiently establishes that the Carrier did not adhere to the commitments contained in the December 11, 1981 letter to "reduce the incidence of subcontracting" and to attempt "procurement of rental equipment and operation th forces do not possess the equipment or expertise for this type of work." That position was reiterated by the Carrier in its March 19, 1985 letter. With respect to the "expertise" for the re-roofing work, the statements of the employees sufficiently demonstrate that they had the capability to perform the type of work at issue. With respect to the lack of equipment, the Organization pointed out that the Form 1 Award No. 29158
 Page 6 Docket No. MW-28125
 92-3-87-3-701

 rented locally- The Carrier did not refute those assertions. Having raised the lack of expertise and lack of equipment questions and given the showings by the Organization to counter those assertions, their burden shifted to the Carrier to refute the Organization's contentions that the employees were capable of performing the work and that rental equipment could reasonably be obtained. The Carrier did not do so. We therefore find that based on this record, the Carrier did not adhere to the commitments of the December 11, 1981 letter to reduce contracting out and to attempt to procure rental equipment. Inasmuch as that letter is explanatory of Article IV, given the facts presented in this case, we the
Fifth, with respect to the remedy, the Carrier has pointed to five specific instances during the period January 9, 1985 through September 8, 1986, wherein the Carrier has contracted out this type of work. This record shows that those instances of contracting out were not objected to by the Organization. See the Carrier's letter of December 18, 1986 where, after listing the instances of contracting out (three prior to filing of this claim and two subsequent to the filing of the claim) the Carrier asserts "At no time during the past several years has any objection been raised by the Organization concerning the above protest the Carrier's similar past actions which the Organization now asserts in this instance was violative of the Agreement, the Organization effectively lulled the Carrier into believing that it could continue to contract out the disputed work without objection. Under the circumstances, although the organization has demonstrated will be required.

        Claim sustained in accordance with the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:

        Nancy er·- Executive Secretary


Dated at Chicago, Illinois, this 3rd day of April 1992.