STATEMENT OF CLAIM: "Claim of the System Committee of the

Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces [John Louisgnont Contracting and Brooks Painting Company] to prepare the surface and paint the walls of four (4) rooms in the La Grande, Oregon Depot Building in La Grande, Oregon on January 31, February 1,2,5,6,7, 15 and 16, 1990 (System File S-283/900362).

(2) The Agreement was also violated when the Carrier assigned B&B Carpenter D. D. Boslau to prepare the surface and paint the walls of two (2) rooms in the La Grande, Oregon Depot Building in La Grande, Oregon on February 15 and 16, 1990.

(3) As a consequence of the violations referred to in Parts (1) and (2) above, furloughed Oregon Division B&B Painter J. L. Kuhn shall be allowed sixty (60) hours at the First Class Painter's straight time rate of pay for the loss of work opportunity suffered."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

After first serving notice on the Organization of its intent to subcontract, the Carrier proceeded to utilize an outside contractor to paint interior walls in the La Grande, Oregon depot.

The Organization alleges that this work has customarily and traditionally been assigned to and performed by its members, and that the Carrier violated Rule 52 of the Agreement when it contracted out the work.

Rule 52 reads in pertinent part as follows:

"RULE 52. CONTRACTING

(a) By Agreement between the Company and the General chairman work customarily performed by employees covered under this Agreement may be let to contractors and performed by contractors' forces. However, such work may only be contracted provided that special skills not possessed by the Company's employees, special equipment not owned by the Company, or special material available only when applied or installed through supplier, are required; or when work is such that the Company is not adequately equipped to handle the work, or when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces. In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the organization in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in `emergency time requirements' cases. If the General

contracting transaction, the

designated representative of the

Company shall promptly meet with him

for that purpose. Said Company and

organization representative shall

make a good faith attempt to reach

an understanding concerning said

contracting but if no understanding.

is reached the Company may

nevertheless proceed with said

contracting, and the organization

may file and progress claims in

connection therewith.

(b) Nothing contained in this rule shall affect prior and existing rights and practices of either party in connection with contracting out. Its purpose is to require the Carrier to give advance notice and if requested, to meet with the General Chairman or his representative to discuss and if possible reach an understanding in connection therewith.

(d) Nothing contained in this rule shall impair the Company's right to assign work not customarily performed by employes covered by this Agreement to outside contractors."

"The Scope Rule is a general Rule and the onproperty record is conclusive that the work has not been `customarily' performed by employees. The letters submitted by B&B Painters do not refute the Carrier's evidence that it utilized outside forces for decades to perform work which included painting. The Organization's rebuttal on the property of the sixty-four year record, including the point that the Omaha headquarters was painted by outside contractors only three times in that

Numerous decisions of the Board have held that the Carrier has the right under Sections (b) and (d) of Rule 52 to contract out work where advance notice is given and the Carrier has established a mixed past practice of contracting out work similar to that involved in the dispute. The record in this case demonstrates a mixed practice on this property with respect to the work in question. It has been performed by members subject to the Agreement in the past but has also been contracted out by the Carrier in the past. We thus conclude that the Carrier did not violate the Agreement when it contracted out the work.

A W A R D