NATIONAL RAILROAD ADJUSTMENT BOARD
 Form 1 THIRD DIVISION Award No. 30182





PARTIES TO DISPUTE*
                  (Southern Pacific Transportation Company

                  ((Eastern Lines)


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


      1. The Agreement was violated when the Carrier

          assigned outside forces (Boh Brothers Construction

          Company) to construct a waste water treatment

          facility at mile Post 147 in the West Yard at

          Lafayette, Louisiana beginning on or about August

          31, 1989 and continuing (System File MW-89-110/485

          89-A SPE).


      2. As a consequence of the aforesaid violation, B&B

          Foreman R.C. Lormand, Assistant Foreman G.W.

          Viator, B&B Carpenters W. Stanford, L. Huval, D. P.

          Barras, R.W. Sonnier, C.J. Arceneaux, Machine

          operators C.L. Fontenot, N.D. Rideau, N.W. Sinegal,

          H. Olivier and W. Williams shall each be allowed

          pay at their respective rates for an equal

          proportionate share of the total number of man

          hours expended by the outside forces performing the

          work in Part (1) 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 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.
 Form 1 Award No. 30182
 Page 2 Docket No. MW-29552
 94-3-90-3-494
 By letter dated July 6, 1989, the Carrier notified the
 organization as follows:

      "Please accept this as Carrier's notice pursuant to Article 36 of the BMWE Agreement of our intent to contract out the following work:


          Construction of new wastewater treatment

          facility at Lafayette, Louisiana.


          It is necessary to contract out this work as the Carrier does not have the personnel, equipment or expertise to construct this facility to meet EPA specifications.


          The work will begin on or after August 1, 1989".


The Organization requested a conference on the matter. Following such conference, the Organization advised the Carrier by letter dated July 19, 1989, in pertinent part as follows:

      "During the conference you were advised that we are now in a large force reduction on the Lafayette Division, you were also advised that the Carrier owned or had under lease all necessary equipment to perform this work and if any other equipment was needed it could be rented without operators in the Lafayette, Louisiana area.


      During the conference you were advised that it was our position that the Maintenance of Way forces did have the expertise to perform all work involved in your notice. You were advised that Maintenance of Way employees have built or installed this type facility or similar facilities at a number of locations on the Southern Pacific and St. Louis Southwestern properties (Dallas, Ennis, Fort Worth, Hearne, Houston, Pine Bluff and Dalhart)".


The work in question was performed by an outside contractor commencing August 31, 1989, and a timely Claim was initiated by the organization.

 A full review of the record convinces the Board that Carrier arguments as to justification of the necessity of using outside forces are not persuasive under the applicable Rules. Previous performance of such work by Carrier forces was not denied. Indeed, other than argument, the Carrier offered no evidence of justification at all in the on-property handling of the dispute.
 Form 1 Award No. 30182
 Page 3 Docket No. MW-29552
 94-3-90-3-494

The particular circumstances here demonstrate a lack of the required "good faith" efforts to assign such work to Carrier forces.


The question remains as the to the remedy, with the Carrier contending that no monetary penalty is appropriate because the claimants were under pay during the claimed period. The Board is fully aware that previous Awards have examined the propriety of pay depending on individual factual circumstances. Here, the Board finds it would be an inadequate resolution simply to state that the Carrier acted in violation of applicable Rules and will sustain the Claim as presented.


                        A WAR D


      Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division


Attest:
      Linda Woods - Arbitration Assistant


Dated at Chicago, Illinois, this 26th day of April 1994.