"Reference your letter dated March 19, 1998 addressed to both Mr. Jed Dodd, General Chairman and myself, received in my office March 23, 1998 relative to the above subject.

I believe you are aware I am opposed to your request contending this work is not covered by the Scope and the M/W hasn't performed this work. The Scope is clear that work previously performed on the former territory will not be removed from them. Moreover, I must point out that the work to be performed in this instance is clearly covered by the Scope. One cannot argue that maintenance and repair of tracks and right-of-ways, roads, parking facilities, drainage repairs and crossings are not railroad Maintenance of Way work. Also the installation of ballast pads.

Also, you contend that the BMWE does not possess the necessary equipment and qualified operators to perform the grading work. It is my position that the carrier has not provided any evidence to support these statements. The equipment required for this work is available on the property and if there is equipment which you contend you do not have, please advise so that we can contact a vendor to rent or lease equipment required to perform this BMWE work. The carrier has failed to provide any evidence that our forces are not skilled for this assignment."

There is disagreement between the parties concerning the Carrier's compliance with the notice and "notice deliberation" conference requirements of the Scope Rule. However, the notice is not fatally deficient and our review of the evidence reveals an exchange of correspondence in April 1998 confirming such notice and conference. Thus, we are persuaded that Part 2 of the claim must be denied and we turn our attention to the positions of the parties on the merits issue of the claim, as presented on the property.

The accuracy of the following description of the specific work at issue in this case, set forth in the claim letter, was never disputed or contradicted in handling on the property:

"On the above dates fifteen employees from Great Lakes Construction Co., performed the duties of a Foreman, a Machine operator, B & B

The question presented for determination is whether performance of that work on the claim dates by employees of Great Lakes Construction Company, under subcontract with the Carrier, violated the contractual rights of the Claimants under the Scope Rule of the controlling Conrail/BMWE Agreement. From the probative evidence and authoritative precedents in the case record before us in this matter, we are persuaded that question must be answered in the affirmative.

The respective positions and arguments presented by the parties in this case are not matters of first impression. Indeed, the drain pipe and catch basin work in dispute in this case is virtually indistinguishable from that considered and discussed by the Board in a sustaining decision in Third Division Award 37046 (cited by the Organization) whereas the denial decision in Third Division Award 30845 (cited by Carrier) concerned "so-called sub-ballast work."

In Third Division Award 37046 the Board found that the Carrier failed altogether to give notice or hold a conference and had this to say about Scope Rule coverage of the specific work at issue:

"The specific work performed by the contractor as described by the Organization was the installation of water drainage lines between and parallel to the tracks in the receiving yard and road railer tracks and installation of distribution boxes to connect the various lines in Rochester Yard. The work required the contractor to use two dump trucks, two Machine Operators (backhoe and front-end loader), a Foreman and two Laborers.

The Scope Rule covers `. . . work generally recognized as Maintenance of Way work, such as . . . construction, repair, and maintenance of water facilities . . . . Rule 1 of the Agreement lists the operation of front-end loaders and backhoes as work, covered by the Agreement. Further, Rule 1 encompasses the operation of vehicles, which we find

Nothing in the decision of the Board in Third Division Award 37046, in which the specific work at issue, the parties and the contract language are identical with the issue, parties and language in the present case, persuades us that it was wrongly decided or that its findings should not be considered dispositive of the present claim. We have often pointed out with only marginal success that the penchant of these parties for forum shopping and seemingly endless re-litigation of matters which should be settled by a soundly reasoned "final and binding" arbitration decision has served no useful purpose and generated much mischief.

Specifically, this claim is sustained because the water drainage line and catch basin work subcontracted by the Carrier over the objection of the Organization was

"within the Scope of the Agreement" and the Carrier failed to provide any evidence to support its bare assertions of affirmative defenses Le., that the project involved in this matter was of such character that BMWE-represented employees could not perform the tasks and/or that any specialized or unavailable equipment was required or used.

As for the appropriate remedy, we find Third Division Award 37046 to be on point, persuasive and dispositive:

"(Iln these kinds of disputes, make whole remedies are granted to employees for lost work opportunities even though those employees may have been working. See Third Division Awards 32335, 31594 and 30944."

Based on all of the foregoing, the Carrier is directed to compensate each Claimant an equal and proportionate share of all straight time and overtime hours expended by the outside forces in performance of said work at his/her respective rate of pay.

AWARD