Usual defenses to failure to comply with such a grant are: (1) emergency; (2) lack of skills; (3) lack of special tools and equipment; (4) size of the project not within the contemplation of the parties at the time of execution of the Agreement: and (5) lack of manpower. Of these, only the last one is a probable defense in this case ....

In Award No. 8184 we were confronted with interpretation and application of a Scope Rule, general in nature. Not so here, for in the 1958 Agreement a specific grant of the work here involved was agreed to in Rule 3 , Note 9, supra. This specific grant prevails over the Scope Rule ...."

Award 14061 was issued on December 22, 1965. Through subsequent contract negotiations the controlling rules have remained essentially unaltered (although renumbered). Rule 8 of the January 1, 1973 Agreement is nearly identical to Rule 3, Note 9 of the May 1, 1958 Agreement upon which the Board based its holding. As the Organization has noted, it is a firmly established principle that when rules are carried forward essentially unchanged into subsequent agreements, so too is their interpretation. (See also, Third Division Award 28572).

In further support of its position the organization has cited several Carrier letters and memoranda in which Carrier acknowledges that Rules 8 and 9 of the Agreement are work reservation rules. Among those communications is the following March 1986 memorandum

from Carrier's Assistant Vice President, Engineering Services to his subordinates:

"For your information, Messrs. T. R. Green and E. R. Myers of the Labor Relations Department and I met with BMWE General Chairman A. M. Johnson on March 6, 1986, and a major portion of the discussion was devoted to the subject [of] contracting out of work which Mr. Johnson feels is work belonging to his constituency pursuant to Rules 8 and 9 of the contract between the Company and the Brotherhood .... (Cites Rules 8 and 91

...I suggest your subordinates who are responsible for planning and scheduling work and those who are responsible for directing the work force become reacquainted with the rules cited above as well as the Shop Craft's subcontracting agreement of September 25

1964 as amended December 4 1975 to insure the Company is not needlessly exposed to undefendable instances of contracting out and the accomoanvina liability " (emphasis added)

Thus, it is apparent from Carrier's own internal correspondence that as of 1986, Carrier acknowledged, in what might be termed an admission against interest in the instant case, that Rules 8 and 9 do in fact reserve work to members of the organization.

The only remaining matters at issue, therefore, are whether the particular work in this case falls under the specific provisions of Rules 8 and 9, and if so, whether there has been a compelling past practice of subcontracting such work out. As the Board held in Third Division Award 28789, the language of Rule 8 does not expressly reserve construction of fences other than "snow or sand" fencing to the Bridge and Building Subdepartment. It is apparent from the evidence on this record that the fence at issue was not of that type.

Rule 9, however, does reserve to the Track Subdepartment the "repairing [of] existing right of way fences, [and] construction of new fences up to one continuous mile ...." Further, Rule 13 confirms that "[r]epairs to existing fence, ordinary relocation, and new construction not exceeding one mile, may be performed by track forces." Accordingly, absent a showing by the Carrier that the "repairing and constructing" of fences referred to in its April

14, 1989 "notice" comprised construction of "new" fence sections greater than one mile in length, the work at issue is expressly reserved by Rules 9 and 13 to employees represented by the organization.

Notwithstanding, Carrier maintains that it has a long-standing past practice of contracting out such fence repair and construction work. As evidence of that contention, Carrier has provided the Board with voluminous records of fencing work previously contracted out over a period of approximately 20 years. The Board notes, however, that all of those projects but two predate the 1986 letter from Vice President McLaughlin acknowledging that Rule 8 and Rule 9 reserve such work to employees of the organization. The record contains insufficient information to explain the two fencing projects contracted out in 1987, but the following comments by the organization remain unrebutted and persuasive:

" ..[Neither] of the incidents cited by the carrier indicates whether or not an exception listed under Rule 52 was applicable and validly justified the transaction. The exceptions ...are:

A. Special skills are not possessed by the

Company's employees.

B. Special equipment is not owned by the

Company.

C. Special material not possessed by the

Company is only available when applied or

installed by the supplier.

D. The work in question is such that the

Company is not adequately equipped to

handle it.

E. Emergency time requirement situations

exist which present undertakings not

contemplated by the Agreement and is

beyond the capacity of the Company's

forces."

Moreover, the Organization offered unrefuted evidence that it had protested subcontracting of work, including fence work, in eleven letters to Carrier dated from June 1988 forward. Accordingly, Carrier must be presumed to have been on notice that the organization intended to insist upon strict application of the work reservation provisions of Rules 8 and 9.

Based upon the foregoing the Board finds that the work at issue did constitute work reserved by the Agreement to employes it represents. We also find that Carrier was on notice that the organization would insist upon its contractual rights to the work reserved to it, notwithstanding what appears to be a "mixed" practice of contracting it out prior to 1986. (See Third Division Award 29432). Accordingly, Part 1 of the instant claim is sustained.

With respect to Part 3 of the claim, the record before us is ambiguous regarding the actual hours of subcontracted work at issue. It is the Board's intention that Claimants should be made whole for wages lost, but should not enjoy a "windfall." Carrier has protested in correspondence on the property, and in its Submission to the Board, that the figure of 1800 hours cited in Part 3 of the organization's claim constitutes only a "best-guess" estimate of the actual hours worked. However, neither in handling of this matter on the property nor in its Submission to the Board, did Carrier present contrary data, presumably in its possession, which would have clarified the number of hours actually expended by subcontracted forces performing the work at issue. In the absence of such evidence, Part 3 of the claim is sustained as presented. Claimants' outside earnings during the dates in question shall be deducted from the monies awarded.

Finally, in view of the peculiarly convoluted fact pattern and unique evidentiary problems presented in this case, the Board's Findings and Award are restricted to the instant case.

A W A R D