"Claim of the System Committee of the Brotherhood that

(i) The Agreement was violated when the Carrier assigned outside forces (Great Lakes Construction Company) to perform ditching, culvert and drainage work between Mile Posts 3.91 and 4.58 on the Cleveland Short Line at Cleveland, Ohio on June 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, July 1, 2 and 3, 1998 [Carrier's File 12(99-609)].

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with a proper advance written notice of its intent to contract out the work as required by the Scope Rule.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants K. G. Champa. F. R. Hoyt, J. D'Orazio, S. J. La Cavera, R. H. Zinni, K. Watts, G. Pongonis, P. S. Shea, R. Sheridan and R. C. Burrows shall now be compensated for'... (8) hours for each day at their appropriate straight time rates of pay, credits toward vacation and all other benefits for June 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, July 1, 2 & 3, 1998."

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

"File: 013.27.04-1690 Installations of Ballast Pads, Cleveland & Berea, Ohio

Gentlemen:

Solely as information, we intend to contract for the necessary grading, drainage and ballast pad construction to support the track construction at Berea, Ohio and on various locations along the Short Line in Cleveland, Ohio. The contractor will distribute, grade and compact the ballast on Conrail property. This work is for the construction of a second track for the Short Line and for the construction of a second track at Berea. Conrail forces will perform all track construction.

We do not possess the necessary equipment and qualified operators to do the grading work required to meet the project schedule. In any event, the Carrier anticipates that it will recall furloughed BMWE employees before the time we award the contract."

There is disagreement between the parties concerning 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 ten employees from Great Lakes Construction Co., performed the duties of a Foreman, Mechanics and Machine Operators from the B & B Department, by digging drainage ditches

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 ConraiUBMWE 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 includes dump trucks .... Therefore, the kind of work involved in this

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 i.e., 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:

"[I]n 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