The Organization contends that Carrier had the burden of proving its justifications for contracting out the work. The Organization argues that Carrier failed to prove a past practice of contracting out the work and failed to prove that it did not have the equipment to perform the job or that the employees were incapable of performing the job. Moreover, the Organization cites a December 11, 1981, letter from Carrier to the Organization assuring that it "will assert good-faith efforts to reduce the incidence of subcontracting . . . including the procurement of rental equipment and operation thereof by carrier employees." The Organization maintains that Carrier failed to prove that it could not procure rental equipment for the job.

Furthermore, the Organization contends that Carrier violated Article IV of the May 17, 1968, Agreement which required at least fifteen days notice of intent to subcontract The Organization accuses Carrier of bad faith in an attempt to "squeeze" its maintenance of way forces.

The Organization urges that a monetary remedy be imposed, even though the Claimants were fully employed during the period in question. The Organization argues that Carrier did not demonstrate that the Claimants could not have performed the work by rescheduling other work or on an overtime basis. In the Organization's view, the Claimant's should be compensated for their lost work opportunity.

The Organization further maintains that a monetary remedy is appropriate because Carrier is a repeat violator of the notice requirements. The Organization accuses Carrier of acting in bad faith and urges that this Board require Carrier to compensate the Claimants to deter future violations.

Carrier contends that the Scope Rule is general in nature and that the Organization had the burden of proving that it has exclusively performed the work in question. Carrier argues that, not only did the Organization fail to prove exclusivity, but that Carrier has contracted out such work frequently over the years. Consequently, in Carrier's view, neither Article IV nor the 1981 letter apply to this matter.

Carrier maintains, however, that it did comply with Article IV. Carrier contends that it gave the Organization substantial notice of its intent to subcontract and urges that if the Organization had sought a conference in a more timely manner, one would have been held sooner. Carrier contends that it contracted out for reasons of efficiency and lack of equipment and that it did so in good faith.

Finally, Carrier argues that if it did violate the Agreement, no monetary remedy is in order. Carrier contends that the Claimants were fully employed during the period in question and, therefore, suffered no monetary losses.

This Board does not write on a clean slate. The issue of subcontracting has been the subject of numerous awards between the parties over the years. Carrier has consistently argued that Article IV's notice requirement does not apply unless the Organization can prove that it has exclusively performed the work in question. This Board has just as consistently rejected this argument. See, e.g., Third Division Awards 31171, 30281, 29825, 29792, 28849, 29023, 29021, 28849, 28559, 28733. There was no dispute that the employees have, at times, performed the work in question. Under our consistent precedents, Carrier was required to give at least fifteen days' notice of its intent to subcontract and, upon request, confer with the Organization prior to subcontracting.

The record reveals that Carrier failed in both respects. Its notice was issued September 11, 1990. Subcontracting began on September 24, 1990. The conference was held on September 27, 1990. Thus, Carrier's notice did not comply with the time lines set forth in Article IV and violated the Agreement. See, e.g., Third Division Awards 31171,29023.

We next consider whether Carrier was precluded from subcontracting the work or was required to justify its decision to subcontract. We note that the Scope Rule is general in nature and that no express language reserves the work exclusively to the employees or otherwise prohibits or restricts Carrier from subcontracting. Under these circumstances, many awards require that the Organization prove that its employees performed the work to the exclusion of others. Even those awards that do not require a showing of exclusivity do place on the Organization an initial burden of proof of the extent to which the employees have performed the work. For example, in Third Division Award 29007, we stated:

"The Organization has the burden of proving by a preponderance of the evidence that the disputed work is of a character customarily and historically performed by the employees it represents. While, as described earlier, we do not find this burden to require a showing of exclusive performance, it does require proof of more than a shared or mixed practice."

In the instant claim, we are presented only with assertions by the Organization that its employees historically have performed the work. Assertions, however, cannot substitute for evidence or proof. We are forced to conclude that the Organization has failed to carry its burden of proof. In the absence of such proof, we will not require Carrier to prove its justifications for the decision to subcontract.

Thus, we find that Carrier violated the Agreement by failing to give adequate notice of its intent to subcontract, but did not violate the agreement by subcontracting out the work. We are not persuaded that a monetary remedy for the notice violation is appropriate.

Although there is precedent between the parties for a monetary remedy for lost work opportunity where the subcontracting itself violates the Agreement, See Third Division Award 30827, numerous Awards between these parties consistently restrict monetary relief for notice violations to furloughed employees. See, e.g., Third Division Awards 31171, 30281, 29825, 29792, 28849, 29023, 29021, 28849, 28559, 28733.

Third Division Award 28513 did grant monetary relief to fully employed claimants for a notice violation by a different Carrier. We justified the relief as follows:

"(Those awards [denying monetary relief for notice violations[ do not address the situation presented in this case where the Carrier failed to the degree demonstrated by this record to follow the previous admonitions of this Board over the requirement to give notice."

We do not find Award 28513 to control the instant case. First, the instant case does not present a total failure by Carrier to give notice. Carrier's notice was a few days late, but Carrier did give substantial, albeit inadequate, notice and did meet with the Organization, albeit again in an untimely manner. Second, this incident arose prior to this Board's admonitions to this Carrier to give Article IV notice in circumstances similar to those present in this case. In Third Division Award 29825, we stated:

"With respect to the Organization's claim for punitive monetary damages (Claimant was employed during the dates in question), . . . , the Board finds that Carrier has been on notice since the issuance of Third Division Award 28849 involving these parties that it is "hereafter required to provide notice of plans to contract out." The events precipitating the instant case evolved prior to issuance of that Award on June 25, 1991. Therefore, the Board does not sustain paragraph (3) of the present claim.

96-3-93-3-110