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

As described by the Organization, the Carrier engaged an outside concern from August 7 to 21, 1990 to cut brush and overgrowth surrounding two miles of track between LaGrange and Pyne, Georgia. The Carrier describes the work as removing "hazardous working conditions caused by trees and other vegetation growing too close to the railroad track" and thus requiring a "high priority" for removal of the overgrowth.

Rule 2 provides in pertinent part as follows:

"This Agreement requires that all maintenance work in the Maintenance of Way and Structures Department is to be performed by employees subject to this Agreement except that it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier."

The Carrier and the organization do not agree as to whether the Carrier provided timely and adequate notification as required by Rule 2. A meeting was held on July 30, 1990 to discuss a different contracting matter. When the Carrier sought to raise the track overgrowth matter at that meeting, the organization resisted discussing what it considered a previously unscheduled topic. Another meeting was set for August 9, at which the matter was discussed. By this time, however, work by the outside firm had been in progress for two days.

While some fault may be found on both sides, the Board concludes that the Carrier failed to provide the means to "confer and reach an understanding" prior to determining "the conditions under which the work will be performed" (emphasis added). The organization demonstrated that the work is of the nature regularly performed by Maintenance of Way forces. Likewise, the carrier has not shown that the work required special skills or special equipment. The absence of a conference prevented any advance "understanding" to distinguish this project from other similar assignments.

A sustaining Award is warranted, both as to the Carrier's proceeding with the work without discussion and because of lack of convincing evidence that the work was not of a nature which readily could be performed by Carrier forces.

As to remedy, the Carrier argues that because the Claimants were fully employed at the time, they were not "monetarily damaged" and are not entitled to a "windfall." There are circumstances in which this reasoning may be applicable. Here, however, there is no proof that the work could not have been scheduled for performance by Carrier forces. Thus a loss of work opportunity is arguably involved. In addition, there is the shared failure to meet the Rule 2 conference requirement. The Board will sustain the claim. Third Division Award 18365, involving the same parties, reached the same conclusion many years ago concerning closely similar circumstances.

WARD