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 employe 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.

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

On August 17 and 18, 1990, the Carrier used an outside contractor with two Rubber Tired 100 Ton Rated Cranes to load equipment at its Barboursville facility. The organization contends that a 30 ton rated American Crane and a 20 ton rated Little Giant Crane already on the property could have been used to lift the equipment, and that the disputed work is reserved to members of the organization. The Carrier contends that it determined that equipment of sufficient capacity was not available to adequately and safely handle. the work and that, as it has done for many years at Barboursville, it utilized an outside contractor with a suitable crane to perform the lifting work.

The Organization also alleges that the Carrier failed to give proper notice of its intent to contract out, and that the Watchman should have been called to open and close the doors on August 18, 1990.

At the outset, it should be noted that certain contentions were raised before the Board which were not raised on the property; these new contentions will not be considered by the Board.

The following provisions of the Agreement are applicable to a resolution of this dispute:

RULE 83 - CONTRACT WORK

"(b) It is understood and agreed that maintenance work coming under the provisions of this agreement and which has heretofore customarily been performed by employees of the railway company, will not be let to contract if the railway company has available the necessary employees to do the work at the time the project is started, or can secure the necessary employees for doing the work by recalling cut-off

agreement ...."

"As explained to you during our conference at Huntington, W. VA, and as you are well aware, it has been the policy of this company to perform all maintenance of way work covered by the Maintenance of Way Agreement with maintenance of way work covered by the where special equyioment was needed, special skills were required, patented processes were used, or when we did not have sufficient qualified forces to perform the work. In each instance where it has been necessary to deviate from this practice in contracting such work, the Railway company has discussed the matter with you as General Chairman before letting any such work to contract.

We expect to continue this practice in the future and if you agree that this disposes of your request, please so indicate your acceptance in the space provided." (Emphasis supplied)

"The interaction between Rule 83(b) and Appendix B has been the subject of several prior decision of this Board involving these same parties and at least eight different Referees. See Third Division Awards 24399, 25967, 26351, 26436, 26791, 26792, 27295, 27585, 28466. Taken together, these awards stand for the precedent that the Carrier may not contract out scope-covered work unless one or more of the exceptions of Appendix B are present and, before letting the contract, it has engaged in discussions with the Organization."

94-3-91-3-566