Although the Majority was not convinced that the Carrier fully complied with the spirit of Rule 2 by electing not to discuss the matter further with the appropriate organization representative, the decision nevertheless properly upheld the longstanding principle that no compensation is warranted where Claimants are fully employed and suffer no loss.

What is troublesome about this Award, however, is the Majority's erroneous conclusion that Carrier's willingness to convene a conference to discuss the subject work with the General Chairman, in combination with its March 3, 1989 notice of intent to contract out the Taft Yard work, constituted an acknowledgment "...that the disputed work was rightfully subject to Rule 2."

Previous Awards of this Board have held that such is not the case. See, for example, the following:

Third Division Award 28543

"As a final matter, we reject the Organization's assertion that, by notifying the employees of its intent to contract out the cleaning and painting work, Carrier implicitly admitted that the work was specifically covered under the Scope Rule. That argument has been rejected in several prior Awards. Third Division Awards 25370, 20920. The rationale generally given'is that such notice is a procedural requirement and does not establish, either affirmatively or negatively, that the disputed work is exclusively covered under the controlling Agreement."

Third Division Award 25370

"Fourth, we do not agree that by notifying the Organization of its intent to contract out the roofing repairs, Carrier was admitting that the work was

specifically covered under the Scope Rule. The giving of such notice is simply a procedural requirement pursuant to Article 36. It does not establish, affirmatively or negatively, that the disputed work is exclusively covered under the Scope Rule (see our Award 20920)."

Third Division Award 20920

"Additionally, Petitioner contends that the giving of notice as to the contracting constituted an admission by Carrier that the disputed work was covered by the Scope Rule.

We cannot agree. Such notice is required under the

Agreement in the event Carrier plans to contract out

work. The giving of such notice, therefore, merely

serves as formal compliance with the Agreement; it does

not of itself establish exclusive Scope Rule coverage of

the disputed work, negatively or affirmatively. For

example, had the Carrier elected not to give notice it

would not logically follow that the work was _not within

Scope Rule coverage."

In view of the above precedent, that aspect of the Award is

M. C. LESNIK M. W. FINGER UT

TO

AWARD 29202, DOCKET MW-29291

(Referee Gold)

The remarks in the "OPINION" are misleading and, as usual, represent only one side of the coin.

It will be noted that the Carrier Members correctly observed that the Majority found the Carrier failed to comply with the spirit of Rule 2 in this case. However, what the Carrier Members, along with the Majority, apparently overlooked was that the Carrier's violation of the spirit of Rule 2 was a violation of GOOD FAITH, i.e., the good-faith mandate to notify and confer to reach an understanding setting forth the conditions under which covered work will be performed, what the Carrier Members, along with the Majority, further overlooked is that the finding of such a violation is a precedent, threshold matter which precludes examination of other issues, such as exclusivity or full employment and which requires a sustaining award in full (see Awards 26770, 28943 and 29121). In addition, the Carrier Members apparently fail to recognize the precedent on this property, i.e., Award 18287, as well as Award 26182, which fully supports the Majority's finding that notice and conference pursuant to Rule 2 demonstrates that the work fell within the rubric of the Agreement.

Notwithstanding, the Carrier Members, this time in concurrence with the Majority, again eschew prior precedent involving this

Carrier and this property concerning full employment. In this connection, we are impelled to point out that the "longstanding principle that no compensation is warranted where Claimants are fully employed and suffer no loss" is at best a divided principle. Awards too numerous for citation herein exist that properly compensate "fully employed" Claimants for contract violations. Nevertheless, typical thereof are Awards 6109, 6199, 6200, 18287, 18365, 18366, 22591, 23498, 28430 and 29059 involving this Carrier and contracting out of work disputes which paid fully employed Claimants but which were apparently ignored. Suffice it to say there is no industry standard with regard to full employment and the precedent involving this Carrier and identical contracting provisions is diametrically opposed to the position of the Carrier Members.

In any event, the awards which denied compensation for employes who were working at the time of a proven violation clearly missed the point. The employes affected clearly suffered a loss since the work performed by the contractors was no longer available for them to perform. While most Agreement employes endure a furlough each year of varying duration, such greatly reduces their ability to earn a sustainable wage. Hence, "full employment" becomes little more than a relative theory to escape monetary liability AFTER the Carrier was found to have violated the Agreement. By allowing the Carrier this device to reduce the

amount of work customarily assigned to its own employes, the work force will be reduced, eventually, to the point where no collective bargaining Agreement employes exist. By disallowing the remedy requested for the proven Agreement violation in this case, the Board is in effect allowing the Carrier to reduce its forces and sanctioning the use of contractor forces. Because the claim process under the Railway Labor Act is essentially the ONLY vehicle by which the integrity of the Agreement can be protected, the Board's disallowance of the remedy here countenances the destruction of the Agreement. Such was obviously NOT the intent of the Board or of the parties when they negotiated the Agreement.

The remainder of the award is correct and by no means "troublesome".

Respectfully submitted,