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

At the time this dispute arose, the Claimants were assigned as machine operators. During the periods of November 20, 21, 22, 27, 28, 29, 30, and December 1, 1989, the Carrier contracted with Marlatt to provide two 580 back hoes, one dump truck and two contractor employees to work at various locations in the St. Joseph Terminal installing cross ties and rail.

The Organization maintains that the Carrier violated the Agreement because it did not give the General Chairman fifteen days' advance written notice of its plan to contract out work which in the past had been performed by employees it represents. The organization further argues that this dispute involves bad faith on the part of the Carrier. The organization contends the carrier's actions in this matter represent an example of the Carrier's total disregard for its contractual obligation, and its failure to live up to that obligation. The Carrier maintains that it served notice of its intent to contract the work on June 15, 1989. Moreover, the Carrier contends that it was not contractually required to serve notice of its intent to engage an outside contractor.

The Organization further argues that the Claimants were qualified, willing, and available to perform all the work involved. The Organization asserts that the Claimants suffered economically from the carrier's action through lost straight time, overtime and holiday pay. The Carrier contends that the Agreement does not provide for a penalty to be paid, and that the Organization has not made an affirmative showing that the Claimants experienced a loss of earnings.

The Organization alleges that Carrier-owned equipment was available during this time period, or was available on a lease basis. The Carrier maintains that it did not have a back hoe available in its equipment inventory, causing it to hire a contractor to provide the equipment along with an operator.

The Organization argues that the work done by the contractor was within the Scope of the Agreement. The organization claims that the operation of equipment in the performance of track maintenance and repair work is reserved to and customarily performed by carrier forces. The Carrier maintains that the Scope rule does not set aside this work for exclusive performance by the Claimants or Carrier employees covered by the Agreement, which merely lists employee classifications and not work. The Carrier maintains that it has the right to contract equipment work.

The Carrier suggests that the appropriate test is "exclusivity," which requires that the organization must show that only members of a particular craft have performed the work at issue. The Carrier acknowledges that employes represented by the organization have performed this work to some extent; but denies that these employes have performed this work exclusively, and cites numerous occasions when contractors have been engaged. The Organization asserts that the exclusivity test has no application in this dispute for five reasons: 1) the Carrier failed to act in good faith, 2) the test is of no effect in deciding disputes involving Article IV and the Agreement and the Carrier's failure to provide advance notice, 3) the test does not apply to disputes involving outside contractors, 4) it is in conflict with the intent and purpose of Article IV and the Agreement, and 5) because there is no evidence on the record that the work involved was customarily and traditionally contracted to outside forces.

The Board has reviewed the dispute as developed on the property. Based on that information, there is insufficient evidence to determine if there was a violation of the Agreement.

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