(1) The Agreement was violated when the Carrier assigned outside forces (Loram, Inc.) to perform roadbed maintenance work (cleaning ballast) on the Western Branch between Ridgeway and Bowling Green, Ohio and on the Cleveland to Indianapolis Main Line between Ridgeway and Bowling Green, Ohio from July 5 through July 23, 1988 (System Docket MW-108).

(2) The Agreement was further violated when the Carrier failed to give the General Chairman fifteen (15) days' advance written notice of its intention to contract out said work.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, three (3) senior Columbus Division machine operators on furlough during the claim period shall each be allowed one hundred seventy (170) hours of pay at their straight time rates."

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

On the dates set forth in the claim, the carrier utilized a contractor (Loram Company) to clean ballast by removing dirt and replacing the cleaned stone back on the roadbed. The carrier defended its actions on the grounds that the contractor had been used by the Carrier since approximately 1970 performing the same work over the Carrier's entire system through use of the contractor's Shoulder Ballast Cleaners (which the contractor only allows its personnel to operate) without the Carrier giving notification to the organization and without prior complaint by the organization.

Assuming for the sake of discussion that the Organization's arguments are all contractually correct, (i.e., that notice was required and not given and that the work fell within the purview of the scope rule), nevertheless, on the basis of the evidence before us, this claim must be denied.

In the past, and without prior objection by the Organization, the Carrier extensively utilized a contractor to perform the work in dispute. The lack of objection by the organization for similar kinds of action effectively lulled the Carrier into presuming that such contracting out was permissible. Under the circumstances, no affirmative relief could be awarded even assuming that the carrier's assumption was contractually incorrect.

WA ARD