contractor (Asplundh Railroad Division) to perform Maintenance

of Way work (spraying weeds and vegetation) on the Kansas

Division between Marysville, Kansas and Gibbon, Nebraska

beginning July 11, 1992 and continuing (System File R-37/920506).

Equipment Operator A. F. Szwanek shall be allowed compensation,

at the Group 21 Roadway Equipment Operator's straight time rate,

equal to the man-hours consumed by the outside forces beginning on

July 11, 1992 and continuing."

Parties to said dispute were given due notice of hearing thereon.

work customarily performed by employes covered under this

Agreement may be let to contractors and be performed by

contractors' forces. However, such work may only be contracted

provided that special skills not possessed by the Company's

employes, special equipment not owned by the Company, or special

material available only when applied or installed through supplier,

are required; or when work is such that the Company is not

adequately equipped to handle the work, or when emergency time

requirements exist which present undertakings not contemplated by

the Agreement and beyond the capacity of the Company's forces.

In the event the Company plans to contract out work because of one

of the criteria described herein, it shall notify the General

Chairman of the Organization in writing as far in advance of the

date of the contracting transaction as is practicable and in any

event not less than fifteen (15) days prior thereto, except in

emergency time requirements' cases. If the General Chairman, or

HS representative, requests a meeting to discuss matters relating to

the said contracting transaction, the designated representative of

the Company shall promptly meet with him for that purpose. Said

Company and Organization representative shall make a good faith

attempt to reach an understanding concerning said contracting but

if no understanding is reached the Company may nevertheless

proceed with said contracting, and the Organization may file and

progress claims in connection therewith."

class, and was available to perform the work in question. The disputed work, according to the Organization, is common, ordinary, weed spraying work contractually reserved to the Carrier's REO's under the Scope Rule. Moreover, the Organization argues that the notice/conference provisions of Rule 52 are not merely procedural, but are substantive. According to the Organization, therefore, the Carrier violated Rule 52 by failing to engage in good-faith conference discussions. Specifically, the Organization objects that the Carrier continued to contract out the disputed work in spite of its prior commitment to reduce the use of outside contractors and increase the use of Maintenance of Way employees.

Further, in response to the Carrier's defense that it does not possess the equipment required to perform the work at issue, the Organization asserts that the fact the Carrier improperly allowed its equipment to deteriorate to the point where it is unusable should not operate to remove the work from the Scope of the Agreement. Similarly, the Carrier cannot fairly argue it has no employees qualified to perform chemical weed spraying when it has not adequately trained and seasoned the work force. The Organization asserts that the Board is empowered to award the remedy requested, regardless of the Claimant's availability on the claim dates. Absent such affirmative relief, the Organization argues, the Carrier will suffer no penalty for its violations.

The Carrier, on the other hand, asserts that it fully complied with Rule 52 requirements. It argues that it provided timely notice to the Organization of its intent to contract out the work, and that a conference was held with the Organization prior to the commencement of the work.

Further, the Carrier maintains that more than 136 Awards involving these parties support its right to contract out numerous activities, including the spraying of weeds and vegetation. In fact, the Carrier directs the Board to Third Division Award 29306, wherein the Board ruled that the Carrier had the right to contract out such work.

After reviewing the record evidence, we have determined that the Organization's claim should be denied. Our review of the record demonstrates that this case involves the same issues and same Rule presented in Third Division Award 29306. In that case, the Board rejected the Organization's arguments that weed spraying belongs to employees it represents and that the Carrier failed to conform with the Notice and conference requirements of Rule 52. So, too, the Board dismissed the Organization's claim that the Carrier could not contract out where it had allowed its spray cars to fall