(1) The Agreement was violated when the carrier assigned outside forces (Weidner Williams) to shovel back wall, clean and patch joints, chip old deteriorating concrete and patch same, touch up and patch with epoxy, sandblasting, driving sheet piling, set forms and overcoating with cement and work in conjunction therewith in connection with the rehabilitation on the bridge at approximately Mile Post 97.17 on the Nebraska Division commencing March 27, 1991 and continuing (System File S-508/910519).

(2) The Agreement was further violated when the Carrier failed to provide a proper advance notice and make a good-faith attempt to reach an understanding concerning said contracting as required by Rule 52(a).

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, BBB Foreman R.E. Portis and Carpenters D.D. Carruthers, R. D. Cutsor and J.R. Ryan shall each be allowed pay, at their respective rates of pay, for an equal proportionate share of the total number of man-hours expended by the contractor's forces commencing March 27, 1991 and continuing until the project was completed."

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 dispute involves concrete repair and epoxy injection work necessary for the rehabilitation of the bridge at M.P. 97.17 on the Nebraska Subdivision. The Carrier served notice of its intention to contract this work on October 9, 1990, and pursuant to the Organization's October 15, 1990 request, a conference was held on November 8, 1990, wherein the parties fully discussed their respective positions. Having been unable to resolve this matter, Carrier subcontracted the work in March, 1991.

The organization argues that the Carrier's failure to specify its reasons for contracting in its October 9, 1990 notice negates the validity of the notice. It also contends that the work involved is reserved to the Claimants by clear, unambiguous and specific Agreement rules, and that the record contains evidence of numerous employee statements supporting the conclusion that they have traditionally performed this work. The organization takes issue with the reliability of the evidence of past practice presented by the Carrier, and asserts that monetary relief is appropriate despite full employment.

The Carrier asserts that the Scope Rule is general in nature, and that it has established a past practice of contracting similar work, permitting it to do so here under the "prior existing rights" language of Rule 52. Carrier also argues that Third Division Award 29782 issued on this property is dispositive of the issue of its right to subcontract this work, and should be given res judicata effect. It contends that notice is not an issue, and that no monetary remedy should issue since claimants were shown to be fully employed during the relevant time period.

The Board has reviewed the extensive record in this case, and initially finds that the notice given was sufficient to inform the Organization of what work was being contemplated for contracting. The fact that a full discussion of all issues the parties wished to bring forward was held during the conference, which occurred over 4 months prior to the contracting, negates any deficiency in the specificity of the notice.

95-3-92-3-560