(1) The Agreement was violated when the Carrier assigned outside forces (Harney Rock and Paving Company) to perform work of grading, transporting and compacting dirt for the construction of a new roadbed for a load out and a set out track at the North Powder ballast pit, North Powder, Oregon from March 26 through April 6, 1990 (System File S-324/900501).

(2) The Agreement was further violated when the Carrier did not notify the General chairman of its intent to contract out the work referred to in Part (1) above, prior to the contracting out of said work, as contemplated by Rule 52(a).

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Roadway Equipment Operators D. W. Turk, N. L. Milner, D. W. Dacus, B. Fanning, K. C. Howell, M. A. Smietana and W. A. Cleaver shall each be allowed pay for one hundred (100) straight time hours at their respective Group 19 Class A rate of pay."

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

The Organization contends that maintenance of way forces were improperly denied work accruing to them in the following circumstances:

"Beginning March 26 and including April 6, 1990, the Carrier assigned an outside concern (Harney Rock and Paving Company), to operate heavy equipment recognized as that which is normally assigned to the Roadway Equipment Subdepartment in connection with the work of building grade, transporting and compacting dirt for the construction of a new roadbed for a `loadout' and a `setout' track at the North Powder ballast pit at North Powder, Oregon."

The Board finds the record in this dispute highly confusing. On-property correspondence and the parties' Submissions principally concern whether or not the Carrier, based on applicable rules and past practice, does or does not have the right to contract this type of work. This controversy has been reviewed on numerous occasions in other Awards and need not be reexamined here. This is because a more fundamental consideration is more directly relevant. This is the question of whether the work was under the control of the carrier.

The record on this point is not as clear as at might be, since there is evidence that the Carrier initially gave the General Chairman a notice of -ita intention to perform the work. The Board is persuaded, however, that the work in question was actually under the control of a lessee of Carrier property (Harney Rock and Paving) and that the work was performed for the benefit and under the control of such lessee. Under these circumstances, it is well established that application of the Scope Rule is simply not appropriate.

AWAR