1. The Agreement was violated when outside forces were used to perform road crossing rehabilitation work, i.e., removing old crossing material (asphalt, gravel, debris, etc.) and applying asphalt material at various crossings between Perry, Kansas and Topeka, Kansas on April 4, 5, 6, 7, 8, 11, 12, 13, 14 and 15, 1988 (System File S-37/880557).

2. The Agreement was further violated when the carrier did not give the General Chairman prior written notification of its plans to assign said work to outside forces.

3. As a consequence of the violations referred to in Parts (1) and/or (2) above, furloughed Group 3 First class carpenters E.F. Zimmerman, D.G. Hogan and M. Wilson shall each be allowed:

`*** seventy three and eight three one hundredths (73 83/100) hours pay at their respective Group 3 First Class Carpenters Rate of Pay.'"

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

It is the opinion of the Board that the Claim before the Board can be resolved on the basis of Rule 52. Rule 52 requires notice to the Organization when the Carrier contracts out work "customarily" performed by bargaining unit employees. Additionally, if the subcontracted work has been customarily performed by Carrier employees, there are limited circumstances under which it can be contracted out.

The record reveals that there is a mixed practice of the Carrier utilizing its employees and outside contractors to do asphalt crossing work. Given this fact, it cannot be said that the usual, ordinary, or customary course of action has been for the carrier to assign the work to the bargaining unit. Under such facts, the Organization has not fulfilled its burden to demonstrate that the work in question has been "customarily" performed by its members. Additionally, the Board notes that the long standing practice of using outside contractors predates Rule 52. This is significant since such practices are preserved and unaffected by Rule 52 pursuant to Paragraph (b).

The Agreement was not violated.

A W A R D