"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Hexom Earth Construction) to construct road bed from Mile Post 74.81 to Mile Post 75.23 for an extension of the White Earth Side Track at White Earth, North Dakota on June 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27 and 28, 1997. (System File T-D-1374-H/MWB 97-10-09AJ BNR).

(2) The Agreement was further violated when the Carrier failed to make a good-faith effort to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces to the extent practicable, including the procurement of rental equipment and operation thereof by its employes as required by Rule 55 and Appendix Y.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Group 2 Machine Operators R. A. Ponzer (grader), M. L. Eide (loader) D. D. Zodrow (crawler dozer), G. E. McDanald (scraper), M. V. Renner (scraper), A. M. Schwindt (crawler excavator), R. J. Viall (truck driver) and W. S. Genre (section foreman) shall each be compensated eighty (80) hours' pay at their respective straight time rates of pay

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

Claimants R. A. Ponzer, M. L. Eide, D. D. Zodrow, G. E. McDanald, M. V. Renner and A. M. Schwindt hold seniority as Group 2 Machine Operators within the Roadway Equipment Sub-department of the Maintenance of Way and Structures Department. Claimants R. J. Viall, E. D. Sauer, K. J. Strabbe, L. J. Viall, K. L. West, G. D. Kudman, J. L. Tracey, R. L. Dean, K. L. Berg, H. W. Johnson and J. D. Hamel hold seniority as Truck Drivers in the Bridge and Building (B&B) Sub-department of the Maintenance of Way and Structures Department. Claimant W. S. Genre holds seniority as a Section Foreman and Claimants D. L. Marmon and T. M. Nordloef hold seniority as Sectionmen in the Track Subdepartment. All were regularly assigned and working as such in the vicinity of White Earth, North Dakota, on the date that the instant dispute arose.

On December 1, 1996, the Carrier provided Notice "as information" to the General Chairman of its plan to contract for the construction of roadbed from Mile Post 74.81 to Mile Post 75.23 for an extension of the Side Track at White Earth, North Dakota. On December 11, 1996, the General Chairman requested a conference to discuss the matter, during which the Carrier indicated that its notice was informational only.

The Organization contends that the Agreement was violated when the Carrier assigned Hexom Earth Construction to construct the aforementioned roadbed on June 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27 and 28,1997. First, it claims that the Carrier did not act in good faith because at the time that the conference was held, the Carrier had already intended to contract out the relevant work. Therefore, the conference was futile. Second, the Organization claims that it was improper for the Carrier to contract out the above-mentioned work, which is work that is properly reserved to the Organization.

According to the Organization, the Carrier had customarily assigned work of this nature to BMWE-represented employees. The Organization further claims that this work is consistent with the Scope Rule. According to the Organization, the Claimants were fully qualified and capable of performing the designated work. The work done by Hexom Earth Construction is within the jurisdiction of the Organization and, therefore, the Claimants should have performed said work. The Organization argues that because the Claimants were denied the opportunity to perform the work, they should be compensated for the lost work opportunity.

Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that the work contracted out was that of roadbed construction, which the Carrier contends does not belong to BMWE-represented employees under either the express language of the Scope Rule or any binding past practice. According to the Carrier, controlling precedent involving these very same parties and identical issues has upheld the Carrier's position. Further, as to the alleged violation of Rule 55, the Carrier asserts that while it is obligated to confer with the Organization if a conference is requested, it is nonetheless permitted to contract out the work.

We find that the Carrier gave proper notice to the Organization of the proposed contracting and that it acted within the confines of the Agreement. We find that the Agreement provides that a conference must take place within a set time period. Beyond that requirement, the Carrier is not precluded from contracting out.

In Third Division Award 37365, the Board held:

". . . the Board concludes that proper notice was timely served, and in accordance with the General Chairman's written request of May 3, 1999, the parties subsequently discussed this matter in conference. The Board holds that the notice was not deficient and provided a basis for the parties' discussion of the contracting situation referenced therein. Thus, there is no evidence that the Carrier failed to satisfy the notice and conference requirements, or that the Organization was not given a full opportunity to discuss the contracting work addressed ....

Further, in Award 20 of Public Law Board 4402, Referee Benn stated:

. . . The Organization misplaces the burden of demonstrating the existence of good faith or lack thereof. This is a contract dispute. As such, before the burden is shifted to the Carrier to demonstrate that its actions were in good faith, the initial burden is upon the Organization to make a showing that he Carrier acted in bad faith."

Thus, we find that the Notice was sufficient and was not issued in bad faith.

Next, we reach the issue of whether the work in question has been customarily and traditionally performed by BMWE-represented employees. In Special Board of Adjustment No. 1016, Award 150, the Board framed the scope issue as follows:

"In disputes of this kind, the threshold question for our analysis is that of scope coverage. There are generally two means of

establishing scope coverage. The first is by citing language in the applicable scope rule that reserves the work in dispute to the Organization represented employees. The second method is required when the language of the scope rule is general. In that event, the Organization must shoulder the burden of proof to show that the employees it represents have customarily, traditionally and historically performed the disputed work. It is well settled that exclusivity of past performance is not required in order to establish scope coverage vis-A-vis an outside contractor."

In the instant case, we carefully reviewed all evidence regarding whether the Organization proved that the work involved belongs to the Organization. First, we note that the work of constructing roadbed is not specifically identified in the Scope Rule.

We next turn to whether there is sufficient evidence for the Organization to have proven that it has customarily, traditionally and historically performed the disputed work. In the instant case, while the Organization presented some evidence to show that the work in question belonged to BMWE-represented employees, that evidence is insufficient for the Organization to meet its burden of proof. See Third Division Award 37365, as well as Public Law Board No. 4402, Awards 20 and 28.

Further, in Award 1 of Public Law Board No. 6537, the Board held as follows:

"Claimants contend that they were improperly deprived of work opportunity to perform maintenance of way work operating various equipment during the construction of a siding extension at Palos, Alabama between Mile Posts 710.85 and 715.18. . . .

This work was performed by outside contractor forces.

According to the Organization, `The character of work involved here is that which has been historically, traditionally, and

customarily performed by the Carrier's Maintenance of Way employees throughout the Carrier's property ....'

The Carrier defended the propriety of its assignment, contending that the disputed work was not within the exclusive jurisdiction of the bargaining unit represented by the Organization, and that similar projects had often been outsourced to contractors in the past .

. . . the Board's evaluation of the propriety of the assignment of many aspects of this project to non-bargaining unit forces employed by outside contractors rests on the Board's determination that similar work has historically been performed on the Carrier's property by outside contractors on many occasions, thus precluding a Eluding of exclusivity of jurisdiction for the bargaining unit over the disputed work in the instant case. The Third Division of the NRAB has held similarly in Cases No. 36280, 36282, and 36283, among others. The holdings in these cases, especially as they involve the same parties as the instant case, afford valuable precedent for the finding herein.

Grading of road bed and compaction of substrate have not been routinely assigned to bargaining unit employees in all cases. Moreover, the portion of the work involving laying and installation of track, work traditionally within the expertise of the bargaining unit, was assigned to bargaining unit employees."

Thus, having determined that the notice was proper and that the work was not within the scope of the Agreement, we find that the Organization has not met its burden of proof and the claim is therefore denied.

AWARD