"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement on January 11, 1991 when it

assigned outside forces (Central Jersey Contracting) to perform

vehicle operators work (operated four (4) dump trucks, equipped

with snow plows, and one (1) fuel truck) to remove snow at Newark

and Elizabeth, New Jersey and fuel two (2) "snow jet" machines at

Croxton and Oak Island Yards on the New Jersey Division (System

Docket MW-1903).

(2) The Carrier further violated the Agreement when it failed to provide advanced written notice of its intention to contract out the track maintenance work described in part (1) hereof.

(3) As a consequence of the violations referred to in parts (1) and/or (2) above, Vehicle Operators S. Vaughn, J. Dacosta, C. Falcoa, S. Aguiar and D. Seamanik shall each be allowed eight (8) hours pay at the Vehicle Operators rate of pay for their lost work opportunity."

On January 11, 1991, it snowed in the Newark/Elizabeth, New Jersey, area. On that date, the Carrier contracted with Central Jersey Contracting to perform the work of snow removal on its New Jersey Division. The Carrier engaged the Contractor to perform snow removal on January 11 without giving prior notification to the General Chairman in accordance with the Maintenance of Way Scope Rule.

On January 24, 1991, the Organization filed a claim on behalf of the Claimants alleging that the Carrier's contracting out of snow removal work on January 11 -violated the Scope Rule. Apparently, all Claimants were fully employed on January 11 and suffered no actual wage loss as a result of the lost work opportunity.

The Carrier denied the claim by arguing that the work of snow removal did not accrue to the Claimants exclusively by virtue of the Scope Rule. Furthermore, the Carrier contends that an emergency situation existed creating an exception to the notification requirement of the Scope Rule. Finally, the Carrier argues that even if the Scope Rule applied and the Agreement was violated the Claimants were not damaged since they were all fully employed during the time period of the alleged contract violation.

The Organization argues that the work of snow removal is clearly established in the Scope Rule and that the Carrier failed to establish the existence of an emergency exempting it from the Scope Rule prior notification requirement.

Finally, the Organization argues that Third Division precedent exists awarding money damages to employees for lost work opportunities, even though those employees are fully employed at the time of violation.

After considering the contentions of the parties, we find that the Carrier. in fact, violated the Scope Rule by contracting out snow removal work on January 11, 1991. Rule No. 1 of the Agreement between the Organization and the Carrier states:

" co e

These rules shall be the agreement between Consolidated Rail Corporation (excluding Altoona Shops) and its employees of the classifications herein set forth represented by the Brotherhood of Maintenance of Way Employes, engaged in work generally recognized as Maintenance of Way work, such as, inspection, construction, repair and maintenance of water facilities, bridges, culverts, buildings and other structures, tracks, fences and road beds, and work which, as of the effective date of this agreement, was being performed by these employees, and shall govern the rates of pay, rules and working conditions of such employees."

The seniority classes and primary duties of each class listed under Track Department Paragraph B(2) provide for the operation of bulldozers, front end loader, backhoe and jet snow blowers.

Clearly, the work in question comes under the Maintenance of Way Scope Rule. The Carrier incorrectly argued that the exclusivity doctrine is applicable to the Scope Rule. (Third Division Awards 27012 and 27636.) It has repeatedly been held that the Carrier cannot contract Scope Rule work unless it first notifies the General Chairman, e.g., Third Division Awards 19552, 23928, 27012 and 27636. Therefore, in the event that the Carrier plans to contract out work covered by the Scope Rule, absent an emergency, the Carrier is obliged by the Agreement, to notify the General Chairman involved.

Next, the Board must consider whether a snowfall may be cause for an emergency situation, thereby relieving the Carrier of its pre-subcontracting notification requirement. The parties expressly recognize this possibility in the contract by suggesting that an emergency may exist as a result of a heavy snowfall. Given the Carrier's assertion that an emergency existed such an affirmative defense to a Scope Rule contracting out violation, the Carrier bears the burden of proving that an actual heavy snowfall occurred on January 11, 1991. The mere assertion that an emergency existed is insufficient to establish an affirmative defense on which the Carrier bears the burden of proof.

A review of the record indicates that the Carrier failed its burden of proving that an actual emergency existed thereby exempting it from the contractual requirement to notice the General Chairman prior to contracting out Scope Rule work. Consequently, we find that an actual violation of the Scope Rule occurred when the Carrier contracted out snow removal work in its New Jersey Division on January 11, 1991, without notifying the General Chairman in advance.

Given that we have found a violation of the Scope Rule, we next must consider whether an award of damages is appropriate in this instance.

The Organization argues that the Third Division has repeatedly determined that it is invested with authority to award monetary damages even though the actual Claimants suffered no actual monetary loss.

The Carrier argues that ample precedent exists which support its view that the Claimants must suffer actual damages in order to be compensated in accordance with the claim otherwise, the Carrier is forced to pay a penalty payment unauthorized by the Agreement. In Third Division Award 26593, we pondered the divergent views of awarding damages to fully employed Claimants.

"Having concluded that we have jurisdiction to consider the issue of damages, we must consider the carrier's argument that even if, assuming arguendo, the agreement was violated, claimant suffered no loss of earnings and therefore the Board has no authority to award damages.

On this issue, too, there are strong opposing views. Many awards support the proposition that even where there is a contract violation, the claim will not succeed unless there is a showing of actual loss of pay on the claimant's part. The opposing line of cases finds that to limit damages, in effect, gives a carrier a license to ignore the contract provisions.

A third viewpoint which has also been expressed is the conclusion that each case must be considered on its merits taking into consideration such factors as intent or motive on the part of the carrier.

We find, as did the Board in Third Division Award No. 23928, that to determine intent or motivation on the part of the carrier, would 'only add a new element of uncertainty in the relationship of the parties' and require the Board to rest on that somewhat slippery slope of subjective considerations. We are of the view that a better purpose is served in the long run which clearly provides a guideline for the parties in the future. With that in mind, we have concluded that there is no prohibition from awarding damages where there is no actual loss of pay. That finding is based on our belief that in order to provide for the enforcement of this agreement, the only way it can be effectively enforced is if a claimant or claimants be awarded damages even though there are no actual losses.

Numerous other awards have reached the same conclusion, holding that where, as here, claimants by carrier's violation lost their rightful opportunity to perform work, they are entitled to a monetary claim. See Third Division Awards 21678, 19899, 19924, 20042, 20338, 20412, 20754, 20892. Accordingly, we will rule to sustain the claim in its entirety."

Applying the findings of Third Division Award 26593 establishing a monetary remedy for fully employed claimants alleging Scope Rule violations, we will sustain this claim in its entirety. We find as we did in Award 26593, that there is no prohibition from awarding damages where there is no actual loss of pay and that the only way the Scope Rule can be effectively enforced is to award damages even though there is no actual loss.

AWARD