(1) The Agreement was violated when the Carrier assigned outside forces (Frontera Construction) to perform Maintenance of Way and Structures Department work (operate weed mower) to shred and mow grass in the yards and right of way at road crossings between Laredo, Texas and Corpus Christi, Texas beginning July 1, 2003 and continuing, instead of Machine Operator T. Vasquez (System File EPTM-03-107/257).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with a notice of its intent to contract out the work in question and failed to exert a goodfaith effort to increase the use of Maintenance of Way forces and reduce the incidence of employing outside forces pursuant to Rule 29 and the December 11, 1981 Letter of Agreement.

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimant T. Vasquez shall now be compensated for all straight time and overtime hours worked by the outside contractor beginning July 1, 2003 and continuing."

Form 1 Award No. 38947

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.

In its January 28, 2004 letter on the property, the Carrier succinctly states the material facts in this dispute:

". . . Carrier utilized the services of a sub-contractor for weed mowing and a notice for such work was not issued to your Organization. This is not denied. Extensive weed mowing projects on this property has for several years been performed by a third party without complaint or claims from your Organization. Frontera Construction Company has provided this service for over two (2) years and prior to that time Carrier utilized the services of Haner Mowing Service."

The case is governed by Rule 29 of the parties' Agreement:

"CONTRACTING OUT

When work coming under the Scope Rule of the Maintenance of Way agreement is found to be of such nature that it cannot be performed by the regular forces of the respective sub-departments, the General Chairman will be notified in writing at least fifteen (15) days in advance of any transaction for contracting out of such work. The carrier and organization representatives shall make a good faith attempt to reach an understanding on the contracting out of the

"[Wleed mowing" is ". . , work coming under the Scope Rule . . . ." As stated in Rule 2, Section 2, Machine Operators such as the Claimant are classified in the Machine Sub-Department and the Scope Rule (Rule 1) provides that "[t]he rules contained herein shall govern the hours of service, working conditions and rates of pay of all employees in any and all sub-departments of the Maintenance of Way and Structures Department and such employes shall perform all work in the Maintenance of Way and Structures Department . . . ." Further, statements from employees show that weed mowing has been perfformed by Maintenance of Way employees in the past. The work in dispute was therefore scope covered. Whether the Carrier contracted out the work in the past or not, Rule 29 still obligated the Carrier to give the Organization advance notice of the contracting out of that work. While this is a Rule 29 case, Board precedent developed under other contracting out Rules with similar language as found in Rule 29 is instructive. See Third Division Award 32862:

". . . [Wle are satisfied that the described work falls `within the scope off the applicable schedule agreement.' The work involved was machine operators' work on a track project - the kind of work the employees have performed. We need not determine for notice purposes whether the equipment utilized by the contractor was specialized, necessary, whether alternative equipment could have been rented, or whether the employees were actually capable of

By not giving at least 15 days advance notice to the Organization of its intent to contract out the weed mowing work, the Carrier therefore violated the clear language in Rule 29.

The question now is what remedy is appropriate for the Carrier's failure to give notice as required by Rule 29? The contractual requirement for a carrier to give an organization notice of its intent to contract out scope covered work was explained in Third Division Award 32862, supra:

". . . [T]he Carrier's failure to give the Organization notice of its intent to contract the work frustrates the process of discussions contemplated by Article IV. See Third Division Award 31280:

`The function of the notice is to allow the Organization the opportunity to convince the Carrier to not contract out the work. Therefore, that opportunity to convince the Carrier to not contract out the work was prevented by the Carrier's failure to give notice."'

If all the Board had in this case was the Carrier's failure to give notice, we would sustain the claim and make the Claimant whole for lost work opportunities solely on the basis of the Carrier's failure to give the Organization advance notice of its intent to contract out the scope covered work as required by Rule 29. See e.g., Third Division Awards 32699, 32861 (where make whole remedies based on lost work opportunities were fashioned solely on the basis of the carrier's failure to give notice and irrespective of whether the disputed work had been exclusively performed by the employees in the past or whether the employees were working at the time of the contracting out).

In its March 31, 2004 letter, the Carrier stated that ". . . the use of subcontractors for weed mowing has and continues to be a practice on this property and has not been an issue until this latest claim." The Carrier then cites the Board to Third Division Award 37961 between the parties decided September 19, 2006, where the Carrier contracted out state road crossing projects without notice to the Organization. The Board found a violation of the notice requirements in Rule 29, but imposed no remedy for the violation:

"Part 2 of the claim asserts lack of a proper notice. There is no issue

as to the notice provision of the Agreement. Any work belonging to

BMWE-represented employees requires the Carrier to provide

notice. The Carrier's argument is that it has performed state road

crossing work for years without complaint from the Organization.

The Carrier argues `Organization acquiescence' on contracting out

state road crossing work, stating that `notices have never been

served on work performed for state road crossings.' And further,

`While your Organization did not deny this fact, it still held that a

notice should have been served and Carrier responded by agreeing

that notices would be served for State work in the future . .... I The

Carrier's argument was not refuted. As such, while there are no

exceptions in the language of the Agreement relating to state road

crossing projects, damages are not applicable, and to that degree,

Part 2 of the claim [the failure to give notice allegation] has merit."

Thus, on this property, because the Organization "acquiesced" to contractors performing scope covered work in the past, Third Division Award 37961 did not impose monetary relief for the Carrier's failure to give notice off contracting out work falling under the Scope Rule of the Agreement.

And that is precisely what happened here. As the Carrier established, for years prior to this claim (and even though the Organization states that employees have also performed the work) contractors have performed mowing work without complaint from the Organization. The fact that contractors have performed that work does not excuse the Carrier from giving notice to the Organization of its intent to contract out the work as required by Rule 29. But given that the Organization previously allowed that practice to occur without complaint and further given the

08-3-NRAB-00003-040144 (04-3-144)