Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29330
THIRD DIVISION Docket No. MW-29049
92-3-89-3-480
The Third Division consisted of the regular members and in
addition Referee Gerald E. Wallin 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 (A. K. Gillis) to perform track and grade crossing rehabilitation work at Bostick Road Crossing (Mile Post 551) on June 1 and 2, 1987 [Carrier's File 013.31-320(234)].

(2) The Carrier also violated Addendum No. 9 (Article IV of the May 17, 1968 National Agreement) when it failed to furnish the General Chairman with advance written notice of its intention to contract out said work.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above:



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.


Form 1 Award No. 29330
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This claim asserts that Carrier violated the Scope Rule and other provisions of the Agreement when it contracted out certain renewal work at the Bostick Road crossing near its Shreveport, Louisiana, operations. Claimants are Track Department employees who performed all of the hand work at crossing renewal. The Claim is for the time spent by three employees of the contractor who operated machinery leased by the Carrier to assist its forces. The Organization also charges the as Addendum No. 9, which contains Article IV - Contracting Out of the May 17, 1968 National Agreement, and the good faith requirements of the December 11, 1981 National Letter of Agreement regarding the contracting of work. The Organization charges Carrier did not notify of the intended contracting of work nor did it attempt to secure rental equipment for operation by its forces. In addition, the Organization alleges loss of future work opportunities as a result.

Carrier denies the work was contracted out. It asserts, rather, that Claimants actually rid the work and were merely assisted by the rental of equipment it does not own. Carrier says the use of such hired equipment has traditionally and historically been the practice on the property. Accordingly, Carrier argues that n it asserts that all Claimants were fully employed and suffered no lost work opportunities. Carrier cites prior Third Division Award 26084, which involved a very similar situation, in support of its position.

In reviewing the instant dispute, we have confined our consideration, as we must, to those matters raised by the parties on the property. Our examination of the record reveals that the Organization did not raise the issue of notice there. That portion of the Claim may not, therefore, be addressed by this Board.

It cannot --e disputed that outside forces performed some portion of the crossing renewal work even if their activities were limited, as Carrier asserts, to an assisting role. The parties dispute, however, whether any of the work was within the scope of the Agreement and reserved to the Organization. In such a situation either explicit Agreement language or by persuasive evidence of traditional and historic performance, that the work is reserved to its members.

In Third Division Award 26084 the Board found the Organization failed to satisfy its burden of proof. As we read that decision, the record there consisted of assertions without any supporting evidence. Accordingly, that claim was properly denied. The record here is different. On the property, the Organization produced substantial evidence of past performance of the disputed work as well as the availability of rental equipment that could have been operated by Carrier forces. Carrier did not respond to this evidence. Moreover, Carrier did not support with any evidence its assertion of a traditional and historical Form 1 Award No. 29330
Page 3 Docket No. MW-29049
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the statements provided by the Organization. These references, however, suggest such activities were neither wide spread nor of long standing duration. On this record, ther the scope of the Agreement. Without Carrier evidence showing a justification for its actions, and there is none in this record, the Carrier's use of outside forces must be found
The Organization asserts that Claimants have lost a future work opportunity. Carrier denies this and asserts that Claimants were fully employed. The Organization does not dispute that the Claimants were fully employed on the Claim dates. The record contains no evidence of lost earnings by any of the Claimants.

In the absence of unusual circumstances, which are not present in this record, the entitlement to a monetary claim is a separate issue requiring independent proof of loss. Loss does not automatically flow from a finding of Agreement violation. No actual loss has been substantiated herein. Therefore, the monetary portion o


      Claim sustained in accordance with the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        ancy J.ZZTvpl~- Executive Secretary


Dated at Chicago, Illinois, this 24th day of July 1992.