By agreement between the Company and the General Chairman, work as described in the preceding paragraph which is customarily performed by employes described herein, may be let to contractors and be performed by contractor's 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 unless work is such that the Company is not adequately equipped to handle the work; or, time requirements must be met which are beyond the capabilities of Company forces to meet.

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 Brotherhood in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen 151 days prior thereto, except in `emergency time requirements, cases. If the General Chairman, or his representative, requests a meeting to discuss matters relating to the said contracting transaction, the designated representative of the Compaq shall promptly meet with him for that

ur ose. The Company and the Brotherhood representatives 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 Brotherhood may file and progress claims in connection therewith.

The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance ofway forces to the extent practicable, including the procurement of rental equipment and operation thereof by carrier employees.

The Parties jointly reaffirm the intent of Article IV of the May 17, 1968 AAereement that advance notice requirements be strictly adhered to and encouraee the Parties locally to take advantage of the good faith discussions provided for to reconcile any differences. In the interests of improving communications between the parties on subcontracting, the advance notices shall identify the work to be contracted and the reasons therefor." (Emphasis added)

The record evidence discloses a complete and unmitigated failure by the Carrier to comply with the good faith notice and conference requirements of the above-cited Agreement provisions. The "as is, where is" defense was waived and the belated assertion of an "emergency" is not only de novo, but not demonstrated by any credible evidence. During on-property handling, the Carrier asserted that its records of the outside contractor's activities were not exactly in accord with the dates and total hours claimed by the Organization, but provided no evidence to support that bare allegation. The affirmative defense that the Carrier lacked "special equipment" begs the question because no contractually mandated notice was ever given and thus no conference afforded to discuss such alleged special circumstances. As we observed in Third Division Award 35735, another recent case with these same Parties and Agreement language involving a similar blatant violation of the notice/conference provisions, the mutual intent of the contracting Parties is that such advance notice is supposed to provide the opportunity for good faith discussion of precisely these kinds of issues. Finally, notwithstanding the Carrier's defense that the Claimants were "fully employed" on claim dates, their loss of work opportunity coupled with the unmitigated violation of the Carrier's contractual obligation to notify and confer if timely requested by the General Chairman before contracting out such work warrants a sustaining award by the Board. See Third Division Awards 31752, 31754, 31755, 31756, 31760, 31777.

AWARD