"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces to perform Maintenance of Way and Structures Department work (remove and install right of way fence) between Mile Posts 31.9 and 32.9 on the Zap Subdivision beginning on May 22, 2000 and continuing instead of Messrs. K. J. Kemmet, J. A. Schumacher and M. G. Sutheimer (System File T-D-2114-W/11-00-0534 BNR).

(2) The Agreement was further violated when the Carrier failed to provide the General Chairman with advance written notice of its plans to contract out said work as required by the Note to Rule 55 and Appendix Y.

(3) As a consequence of the violations referred to in Part (1) and/or (2) above, Claimants K. J. Kemmet, J. A. Schumacher and M. G. Sutheimer shall now be compensated for °...three hundred and four (304) hours pay at their respective rate of pay and that claimants each receive equal and proportionate pay to any monies spent by the outside source if any additional fence is built."'

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.

This claim alleges that, beginning on May 22, 2000, the landowners of Cross Ranch removed approximately one mile of fencing adjacent to their property and on the Carrier's right-of-way. The landowners then installed a new fence. The work occurred on the Zap Subdivision between Mileposts 31.9 and 32.9 in North Dakota.

The Organization contends that this was scope covered work that has been customarily and traditionally performed by employee forces. Moreover, the Organization submits that the Carrier violated the Note to Rule 55 of the Agreement, which pt·ovides in pertinent part:

". . . In the event the Company plans to contract out work because of one of the criteria described herein, it shall notify the General Chairman of the Organization in writing as far in advance of the date of the contracting transaction as is practicable and in any event not less than fifteen (15) days prior thereto, except in `emergency time requirements' cases."

Throughout the handling on the property, the Carrier maintained that there was no contractual arrangement with the landowners to perform the fencing work. According to the Carrier, the landowners replaced the fence at their own expense, on their own initiative, and without notice to the Carrier.

In addition, the Carrier argued that the Organization did not establish that the fence was built on the Carrier's right-of-way, nor was there evidence that the

Carrier had any legal obligations with regard to the Cross Ranch fence. In the absence of such proof, the Carrier asserts that the line of cases exemplified by Third Division Award 35634 is controlling. In that case, the Board held that the Carrier is not governed by the contracting out provisions of the Agreement where the work is unrelated to railroad operations, or where the work is undertaken at the sole expense of the other party and is for the ultimate benefit of others, or where the Carrier has no control over the work for reasons unrelated to having contracted out the work. Also see, Third Division Awards 37221 and 37227.

The Carrier also argued that the Organization failed to meet its burden of establishing that BMWE-represented employees have performed fencing work to the exclusion of others. Finally, the Carrier contended that no monetary damages to the Claimants, who were employed elsewhere at the time, resulted from the unauthorized fencing operation.

Having undertaken a complete review of the record and the precedent Awards cited by the parties, we find at the outset that the Carrier did not violate the notice requirements found in the Note to Rule 55 of the Agreement. As the language in that provision plainly specifies, advance notice is mandated when Carrier "plans" to "contract out work." In this case, there is no evidence that the Carrier planned to contract out the work in question. The Organization's contention that the Carrier knew or reasonably should have known about the fence work is merely speculative and does not support a finding that the Carrier's conduct manifested implied agreement, consent or knowledge of an action that infringed upon the Claimants' contractual rights. Absent here is any proof of an Agreement between the landowner and the Carrier or evidence of advance knowledge by the Carrier that the landowner intended to replace the fence. Because the Carrier did not plan to contract out the work, it was impossible to notify the Organization in advance.

On the merits, however, the Board has enforced a carrier's contracting out obligations even in the absence of a formal subcontracting agreement with a third party. This is based on the recognition that a carrier is ultimately financially responsible for work that is performed on its property. When a stranger to the Agreement performs work reserved by the labor contract to Maintenance of Way personnel - even when it has occurred without a carrier's knowledge or consent - a benefit has been conferred upon the carrier while at the same time a commensurate work opportunity has been removed from the carrier's employees. This form of

"unjust enrichment" has resulted in sustaining Awards. See, Third Division Awards 24621 and 25402 as well as Special Board of Adjustment No. 285, Award 10.

Applying the foregoing principles to the case at bar, the Board finds that the Organization met its evidentiary burden of proof on the issue of its entitlement to perform the fencing work on the Carrier's right-of-way. The Organization produced the track profile depicting the Carrier's right-of-way at the location where the work was performed. It also submitted signed statements from long-time employees attesting to the fact that the Cross Ranch landowners removed the Carrier's fence on the right-of-way and erected a new fence in the same location. This evidence stands unrefuted by the Carrier. Moreover, although the Carrier argued that it has no legal obligation to construct a fence if a landowner has done so, it was established that the Carrier nevertheless has a duty under North Dakota law to provide and maintain its right-of-way fences. See, Section 49-11.24. Thus, the work performed by the landowner clearly inured to the benefit of the Carrier.

In addition, the Carrier's exclusivity defense is not persuasive under the particular facts adduced on this record. Significantly, such argument has been rejected in two relatively recent fencing subcontracting disputes on this property. See, Public Law Board No. 4768, Award 25 and Public Law Board No. 4402, Award 21. Equally significant, there was considerable evidence offered by the Organization to show that BMWE-represented employees have performed this work within the scope of their Agreement. If the work was contracted out in the past, then the Carrier was obligated to provide such evidence during the onproperty handling so that the Board could determine the extent and nature of the work performed. It did not do so. As the record stands, the only evidence properly before the Board is the Organization's, which sets out in considerable detail the right-of-way fencing responsibilities consistently performed by maintenance-of-way personnel.

In view of the foregoing, it is concluded that the prima facie case in support of Paragraph (1) of the Statement of Claim has not been rebutted by the Carrier and that this portion of the claim is meritorious. With regard to compensation, prior authorities have held that an award of compensation is appropriate for lost work opportunities notwithstanding that the particular claimants may have been under pay at the time of the violation. See Third Division Awards 26125, 34216, 35169, 36015 and Public Law Board No. 4768, Award 25. The claim will therefore be sustained and each Claimant shall be compensated at his respective pro rata rate of

pay for an equal proportionate share of the total hours worked by or on behalf of the Cross Ranch landowners in connection with the fence at issue on the claim dates. We note that the actual number of hours expended was not definitively verified from the record. Accordingly, the number of actual hours expended on this project is to be verified, and thereafter the Claimants shall promptly be made whole in accordance with the foregoing discussion.

AWARD