assignment of the work to outside forces. Some attempts were made to arrange for the work to be performed by Carrier forces, but these were unsuccessful.
The Carrier initially defends its right to have £iie work performed by a contractor based on previous arbitral findings. Third Division Award No. 14294 (1966) involved a dispute concerning the roofing of the same building under the predecessor railroad (CB&Q). Citing previous cases, that Award stated:
Likewise, Third Division Award No. 16752 (1968), stated in reference to another instance of roofing involving the same parties as follows:
This claim involved the contracting out of roof repair work (installation of a rubber membrane roof) on the Old Blacksmith Shop at West Burlington, Iowa. The Board's reasoning for denying this claim is plainly wrong and requirOs dissent.
In denying the claim the Board referred to two (2) prior decisions of the Third Division (Awards 14294 and 16752), both which predated Appendix Y (the December 11, 1981 Letter of Agreement), and held:
The Board's decision to deny this claim on the basis of the two (2) earlier Third Division awards is faulty because the circumstances surrounding the contracting out of work involved here differed substantially from the circumstances involved in the earlier awards. While the earlier Third Division decisions cited the Carrier's past usage of outside forces as the basis upon which to deny the claims, in this instance the organization established that the past usage of outside forces to perform roofing work was not, in and of itself, a valid basis upon which to contract out work under the terms of the Note to Rule 55 or the December 11, 1981 Letter of Agreement (Appendix Y).
Regarding the Note to Rule 55, the Carrier complied with its obligation to provide the General Chairman with advance written notice of its plans to contract out the roof repair work. In its notice and during the contracting conference the carrier asserted that the contracting was necessary (1) because of a lack of expertise and equipment, (2) an alleged warranty, (3) an urgency purportedly created by the leaking roof and (4) the purported lack of manpower for the job. Each alleged reason was discredited by the Organization during the handling on the property and the Board did not deny the claim based on any of the reasons cited by the carrier. Instead, the Board denied the claim because of its determination that there was "no basis for the Board to disregard Employe Member Dissent to Award 46,
the conclusions reached in the previous awards, cited above, as to the long-standing practice to contract such specific work." There are several problems with such a finding. First, it places improper emphasis on past practice-as justification for contracting out work under this Agreement. The Note to Rule 55 sets forth the specific circumstances under which the Carrier may contract out scope covered work, i.e., when special skills, special equipment or special materials are required, or when the Carrier is not adequately equipped to handle the work or in an emergency. The Note does not specify "past practice" as a valid basis upon which to justify the contracting out of work. Furthermore, it must be noted that the Note to Rule 55 does not contain any "prior rights" language similar to-that found in Article IV of the May 17, 1968 National Agreement. Article IV stipulates that:
Some arbitral awards have interpreted the above language to mean that a carrier can contract out work merely if it can show that it has done so in the past, regardless of whether the Carrier has shown justification to do so in a particular instance. The organization vigorously disputes the validity of such an interpretation. Nonetheless, we submit that such an interpretation, if it had any validity in the first place, has no validity now in light of the language contained in the December 11, 1981 Letter of Agreement (Appendix Y). In the December 11, 1981 Letter of Agreement the carriers promised to exercise good-faith in contracting and to increase the usage of its employees to perform work which may have been contracted before. In this connection, it should be noted that the December 11, 1981 Letter of Agreement was the result of intense discussions at the National level relative to the carriers inordinate use of outside forces to perform Maintenance of Way work. The result of those discussions was the December 11, 1981 Letter of Agreement. Paragraph seven thereof reads:
The above-quoted paragraph placed on the Carrier the burden of exercising managerial foresight for the purpose of reducing the incidence of subcontracting and increasing the use of its Maintenance of Way forces before 'resorting to the use of outside forces. To this end, the Carrier was charged with the responsibility of asserting a GOOD-FAITH effort to reduce subcontracting and utilize its forces to the extend practicable. Obviously an arbitral finding that this Carrier may contract out work solely on the basis of a past practice is diametrically opposed to the parties negotiated agreement of December 11, 1981. With respect to the December il, 1981 Letter of Agreement Third Division Award 29121 held:
Clearly, the Board's determination in this instance that the Carrier was free to assign the roofing work to outsiders based on past practice alone was faulty. The record was filled with evidence (32 written statements from longtime employes) establishing that MW forces have historically performed roof repair work, including the installation of rubber membrane roofing material. Moreover, each of the Carrier's alleged- reasons for contracting out the work was shown to be without merit. This Board's determination totally disregards the language of the December il, 1981 Letter of Agreement regarding the Carrier's promises to reduce the incidence of subcontracting and increase the use of its Maintenance of Way forces. Such a finding requires our vigorous dissent.