In its initial claim, dated December 3, 1998, to the Division Engineer, the Assistant General Chairman asserted:

"On the above dates ten employees from National Engineering Corp., performed the duties of a Foreman, Mechanics and Machine Operators from the B&B Department by building and installing a concrete and steel retaining wall along the Kinsman Connection track to shift the tracks 8' for clearance on the new CSX Mainline. This work consisted of auguring holes and pouring concrete to install steel H piles which will hold pre-cast concrete blocks or barriers to complete a retaining wall."

"Before you implicate that this does not fall under the Scope of the B&B employees Agreement and that we do not have the expertise to perform this work, let me make you aware that we do have the expertise, as we have performed this work at Haysville Yard in Pittsburgh PA., within the last year."

The Division Engineer's December 29, 1998 denial of the claim stated that the claim lacked merit because the Organization bad been served a contracting Notice and that "none of the individuals listed have suffered loss of compensation or benefits." The letter also stated that Claimant Hoyt was medically disqualified for service (according to the record, the Organization subsequently deleted Hoyt's name from the claim).

The Organization then appealed the claim to the Manager-Labor Relations, and requested a conference pursuant to Rule 26(b). The record indicates that the claim was discussed on July 28, 1999. On August 25, 1999, the Director-Employee Relations denied the claim. According to the Carrier, on August 4, 1998, the Carrier had furnished proper advance written notice of its intention to contract out the work. The claim denial letter also stated:

"Carrier's decision to contract the work was sanctioned by the magnitude of the project, which the Carrier Is not required to piecemeal, the lack of expertise among Carrier's forces and the unavailability of necessary equipment. The Organization failed to

The Carrier also asserted that the Claimants were fully employed at the time the work was performed and in fact worked "substantial amounts of overtime." It was also the position of the Carrier that the 2,700 man-hours claimed by the Organization were excessive inasmuch as National Engineering Corp.'s records indicated that its forces expended a total of 818.5 hours on the project, and that any remedy in this case should not exceed the payment of 818.5 hours at the applicable straight time rate.

At the subsequent level of appeal, the Organization introduced copies of recent B&B job advertisements and lists of Carrier-owned machinery in support of its contention that the work performed by the contractor was "fundamental B&B work" covered by the Scope Rule. The Organization also submitted a copy of the original claim that included a statement from Foreman K. G. Champs identifying the work performed by the contractor. Champs also asserted that during the one year prior to this claim, "the same type of work" was completed at Haysville Yard, in Pittsburgh, Pennsylvania, by several B&B Department employees under the supervision of Foreman Dole, and that "there is an ongoing project in Pittsburgh at this time that is doing the same work. Joe Lentz's gang is doing the project."

The Carrier contended that Champa's statement was nothing more than a request that the Organization should rile a claim and that, as such, it carried no evidentiary value. The Carrier reiterated that it properly contracted out this work because the Claimants "qualified or not, were unavailable to perform the work when it was performed." The Carrier further gave reasons of "lack of equipment and skill" in support of its rationale for contracting out the work.

The record establishes that the Carrier's 15-day Notice comported with the parties' Scope Rule requirements with respect to the notification procedures prior to undertaking any contracting out of work. Again, the Notice specified that the work would involve the "installation of two (2) new concrete lagging and steel soldier pile retaining wall(s)" and the "installation of a pre-ballast pad." The conference held on September 22, 1998 allowed the parties to engage in good-faith discussions of the Carrier's proposed contracting, but the Organization was unable to convince the Carrier to proceed with this work using its own B&B forces.

However, the record also demonstrates that from the outset of this claim, the Organization gave the Carrier specific information concerning the work allegedly performed by the contractor. For example, at the initial level of claim handling, presumably based on Champa's statement, discussed above, the Assistant General Chairman described the components of the retaining wall (steel and concrete) and specified the work performed by the contractor's forces (auguring holes, pouring concrete, installation of H piles). Furthermore, during the on-property handling of this claim, the Organization again, through Champa's statement, informed the Carrier that certain B&B Department employees had both recently constructed and were in the process of constructing similar retaining walls in the Pittsburgh area.

The record reflects an absence of any evidence from the Carrier to rebut the Organization's contention that the work accrued to the Claimants under the Scope Rule and Rule 1. Furthermore, the Board finds no evidence to substantiate the Carrier's assertion that it did not possess the necessary equipment for the project, or that the B&B employees did not have the sufficient level of expertise. Rather, the record indicates that the Carrier's decision to contract out the work may have been precipitated by a shortage of its own manpower. The instant case is factually distinguishable from Third Division Award 31523, the Majority finds.

Thus, having thoroughly reviewed this record, the Board concludes that the Organization established by substantial evidence, which remained unrefuted by the Carrier, that the Claimants possessed the skills necessary to perform the contracting work in dispute, and that B&B Department employees had customarily performed that work. Therefore, the claim must be sustained.

With respect to the remedy requested, the Board orders that, based on the record of this case, the Claimants are entitled to an equal share of the 818.5 hours worked by the contractor. In view of all of the circumstances present here, the Board also finds that the 818.5 hours should be paid at the straight time rate.

AWARD