PARTIES TO DISPUTE:
 Brotherhood Of Maintenance Of Way Employees
 And
 Southern Railway Company

 STATEMENT OF CLAIM:

      Mechanic Leroy Bates and Larry Robb, Foreman Frank Baker and Terry Hoesyle, Apprentices E.R. Mason and John Beasley and Pile Driver Engineer Larry Walston have filed claim for each to be paid at their respective rate of pay for a total of 160 hours, due to Carrier violating Agreement when a contractor was used to reconstruct a trestle between September 27 and October 19, 1982.


      FINDINGS: Between September 27 and October 19, 1982, Carrier used contracted-out labor. to perform reconstruction work. The organization filed Claim on behalf of Claimants, seeking compensation on the grounds that Carrier violated the Agreement by using contracted-out labor. The issue to be decided in this dispute is whether Carrier violated the Agreement by using contracted-out labor to perform the services in question. The position of the Carrier is that the Agreement clearly allows it to contract out work such as that performed in the present Claim. The Carrier contends that it has~a long-standing

                                              34y5~o


and established practice of contracting out work, and cites several awards decided between the parties holding that the Carrier is not restricted under the Agreement from contracting out work. The Carrier contends that these awards also indicate that the Organization has the burden o£ proving that the contracted-out work was exclusively reserved to Claimants. The Carrier maintains that the organization has failed to do so.
 The Carrier contends that the work performed by the contracted-out laborers was not exclusively performed by the Claimants. The Carrier cites a letter dated May 4, 1983, outlining 128 previous trestle reconstruction projects performed by contract labor. The Carrier submits that this clearly establishes non-exclusivity of the work in question.
 The position of the Organization is that the work W quention was improperly contracted out under the Agreement. The Organization contends that Claimants possessed sufficient skill and were available for service on the dates in question. The organization further contends that Carrier should have notified Claimants as to the availability of the work performed by the contract labor.
 After review of the applicable contract provisions, the Hoard finds that the Claim must be denied.
 We agree with Carrier that nothing in the Agreement prohibits it from contracting out work. The Scope Rule of the Agreement does not define the type of work to be performed by

                          2 -

                                                  3N~P~-ia -


-particular employees and does not exclusively reserve work for any particular group of employees. The organization has not demonstrated that any part of the Agreement prohibits Carrier from contracting out work when it deems it necessary.
 We agree with Award No. 9 of P.L. B. 2556, wherein the Board stated "In order for the Employees to here prevail they must offer probative evidence to prove that the work contracted out is of the type that by tradition, custom or practice has been performed exclusively by employees covered by their agreement." The Organization has failed to present any evidence that the work contracted out by Carrier was exclusively performed

 by its employees. - -
      To the contrary, Carrier has demonstrated that on several -

occasions it has contracted-out labor to perform services similar
 to those performed in this case. Therefore, we must conclude
 that the work in question was not exclusively performed by
 Claimants and that they are not entitled under the Agreement to
 the compensation sought .
AWARD:

      Claim denied.


                          Neutral Me e


                              //ice'

                          artier Member


                          "'~w r0- Org ation

                                            - G~


Date:
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                  PUBLIC LAW BOARD 3445


                DISSENTION TO AWARD N0. 10


    Third Division Award 757, Docket MW-745 dated November 18, 1938


involving contracting out of Bridge and Building work by the Missouri

 Railroad Company. This is one of the earlier piccedent awards of the

 Third Division of the NRAB. I will quote in part:

    "It _is .well settled by many decisions of this and the First Division of this Board and predecessor Boards that as an abstract principle a Carrier may not let out to others the performance of work of a type embraced within one of its collective agreements with its employer. This conclusion is reached not because of anything stated in the scheduled

    ~reement but as a basic legal principle that the contract -

    _wtth the employer covers all the work of the kind involved

    _exctpt-.such as may be specifically exempted._ Ordinaries

    such exceptions appear in the Scope Rule bur. the decision

    _likeai_sa__recoZnizes that there may be other-exceQtions_

    ~'~ve definite proof of which however is _neces~ary to establish that status as a limitation upon the greement. Mere practices alone is not sufficient for as often held repeated violations of a contract do not modify it.


    It should be necessary to say that if the reason for contracting out the work is that the contractor can do it cheaper by reason of paying- his employer a lower scale of wages or subjecting to them to less advantageous working conditions than those stipulated by the collective bargaining agreement with the employer that such letting out to contract would constitute a flagrant violation of the collective agreement."


    For these reasons we are dissenting the decision on this Award.


                              a

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Organization Member