(1) The Agreement was violated when the Carrier assigned an outside concern (Neosho Construction Company) to perform roadway equipment operator's work (operation of a crane for pile driving, handling material and the placing of a bridge) at approximately Mile Post 177.75 on the Kansas Division from May 7 through June 6, 1990 (System File S-374/900646).

(2) The Agreement was further violated when the Carrier failed to schedule and hold a conference with the General Chairman, prior to its contracting out the above described work, in accordance with Rule 52.

(3) As a consequence of the violations referred to in either Part (1) and/or Part (2) above, Roadway Equipment Operator J. A. Poersch shall be compensated for an equal proportionate share of the total number of man-hours worked by the Neosho Construction Company forces in the performance of the work involved here."

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.

"This is to advise of the Carrier's intent to solicit bids to cover the construction of Bridge 177.77 in conjunction with the extension of Rudy Siding.

This work is being performed under the provisions of the Agreement which states `Nothing contained in this rule shall affect prior and existing rights and practices of either party in connection with contracting out.'

Serving of this `Notice' is not to be construed as an indication that the work described above necessarily falls within the 'scope' of your Agreement, nor as an indication that such work is necessarily reserved, as a matter of practice, to those employes represented by the BMWE."

The General Chairman replied in detail on March 26, 1990, concluding with a request for a conference "prior to the work being assigned to and performed by a contractor". At this point, under Rule 52, the Carrier was obligated to have a designated representative "promptly meet" with the General chairman (regardless of whether the Carrier believed it had the authority to contract the work under the provision mentioned in its letter).

On April 26, 1990, the Carrier replied that it was "reevaluating the economics of construction of the bridge" and that it was "possible" that it would be constructed by Carrier forces. The carrier suggested that "we hold this subject for further review in conference.°° This obviously added to the Carrier's responsibility to meet with the General chairman prior to any possible contracting. The conference occurred on May 15, 1990, and three days later the Carrier advised that a contractor had been engaged to provide off-track cranes with operators. However, agreement had been reached, on or probably prior to May 15, to use Carrier forces for all other aspects of the project.

According to the Organization, what the Carrier did not state was that the contract work involving the cranes had commenced even prior to the May 15 conference. There is no convincing evidence that this was not the case. The fact remains that the Carrier acted prior to the required conference. This is clearly not in compliance with the terms of Rule 52.

i