On July 15, 1998, the Carrier denied the claim, asserting that although the work undertaken by Milford Construction Company was road construction "not typically undertaken by B&B forces," the Carrier had given proper notice to the General Chairman. The Carrier further noted that: ". . . the B&B forces in Cleveland have been offered whatever overtime they would be willing to undertake .... None of the individuals listed have suffered loss of compensation or benefits."

In a September 14, 1998 reply to the Carrier's denial, the Assistant General Chairman noted that the Carrier did not "dispute the merits of the claim," but rather had argued only that the contracting to Milford Construction Company had been done "in accordance with" the Agreement.

With respect to the Carrier's assertion that the Claimants suffered no loss of compensation or benefits and were offered "whatever overtime they were willing to undertake," the Assistant General Chairman maintained that "such an assertion is simply acknowledgement that Carrier violated the Agreement and is attempting to reduce its monetary liability." The Assistant General Chairman further maintained that the Carrier had created "a future loss of work opportunity" when it contracted out the disputed work. Finally, the Organization contended that even though the Claimants were working at the time of tfie "violation," the "NRAB has consistently ruled that a monetary remedy can be sustained to protect the integrity of the Agreement."

In its final denial of the claim, the Carrier asserted that the disputed work "is not Scope covered and has not been traditionally and historically performed by Maintenance of Way forces, thereby negating the need for notification of same. The Carrier went on to note that there were no furloughed employees on the claim date, and, therefore, the Organization's citation of Article XV of the Agreement was "irrelevant." Finally, the Carrier asserted that the Organization claimed an eight hour day for each of the four Claimants "without making any correlation with the hours actually expended by the contractor," rendering the claim "purposely vague and ambiguous."

This case presents a dispute over the Carrier's assignment of Milford Construction Company to build a roadway at the above location, in lieu of the

Claimants. It is not refuted that the work at issue involved equipment such as a front-end loader, backhoe, road grader and a roller. Nor is it disputed that the project involved grading, putting out new stone and ballast, and tamping same. The Organization contends that the performance of this work was in connection with "roadbed repair work," which accrues to BMWE-represented employees. For its part, the Carrier asserts that the work merely involved construction of a "temporary access road" so that traffic could be diverted while a Fire Hydrant Line was being relocated.

The record supports the Carrier's representation of the nature of the work. Such work is not specifically covered by the language of the Scope Rule. In order to prevail in this dispute it was incumbent upon the Organization to: (1) cite specific language within the applicable Scope Rule that reserves the disputed work to the Claimants; or, (2) demonstrate that BMWE-represented employees had by customary and historical practice performed the disputed work. In the circumstances, the Organization was unable to shoulder that burden of proof, and therefore, this claim must be denied.

AWARD