COMPANY CASE NO. to Carrier's April 28, 1994 notice. Subsequently, Carrier proceeded to contract out the work in dispute to Annex when Benchmark was unable to accept the assignment. Thereafter, the General Chairman filed the instant dual basis claim on August 29, 1994, asserting a violation of the "goodfaith" requirements in this contracting out and claiming that the work of "replacement of ties and pulling of spikes", started by the subcontractor on July 6, 1994, was reserved to Agreement-covered employees by a custom, practice and tradition of performance spanning many years.

At various stages of handling on the property, the General Chairman made the following detailed assertions of fact, none of which have ever been effectively answered or repudiated by Carrier in the handling of this case: 1) "On this Bridge, the Bridge employees and the three that are presently laid off replaced over (10) ten thousand ties in 1991 and again in 1992" (Letter of May 2, 1994 requesting conference); 2) "It was only two years ago that the carrier awarded the B&B department with awards for doing such a fine job replacing ties on this bridge, in 1991 and 1992 we replaced over 20,000 bridge ties on this bridge" (claim letter of August 29, 1994); 3) "Some of the work these contractors did was nothing more than spiking of ties, bolting up wood guard rail and replacement of 1,530 ties, the same work that our employees have performed on the Merchants Bridge ...as well as other locations on the property". . . as I stated in my claim, it was only in 1990-92 that over 30,000 (thirty thousand) ties were put in with the B&B forces, as well as miles of steel walkway and miles of wooden outer guard rail" (letter of April 19, 1995 rejecting final denial).

At no point in the handling of this claim on the property did Carrier ever address, let alone effectively contradict, the fact that Agreement-covered employees had performed tie replacement,

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AWARD NO. 11 NMB CASE NO. MW-3258_6 UNION CASE NO. COMPANY CASE NO. steel walkway and outer guardrail bridgework on Carrier-owned bridges, including this very bridge, identical to that which is the subject matter of the instant case.

A belated, generic and unsupported assertion in the final denial letter that "the disputed work is of a character customarily and historically contracted out" does not suffice to rebut the Organization's specific and detailed claim that Agreement-covered employees previously performed identical work. In that connection, Carrier denied the claim at all levels of handling by reasserting the reasons for contracting out this particular work advanced by Chief Engineer Trice's letter of October 27, 1994. In that letter, he questioned the status of several of the named claimants and asserted the following grounds for the subcontracting decision: 1) "Carrier was not well equipped to perform a project of this magnitude"; 2) "Carrier's supervisors, employees and equipment were

In this case, just as in the claim decided in our Award No. 13, the Organization has made out on this record a prima facie case that the work on the MacArthur Bridge which Carrier contracted out to Annex, Inc., pursuant to its Article IV letter of April 28, 1994, was identical to work regularly and consistently performed in the past by Agreement-covered employees. See NRAB Third Division Awards 32748 and 29007. Carrier did not effectively dispute that fact on this record and offered no reason recognizable under the controlling contract language as justification for unilaterally outsourcing this particular work without the concurrence of the Organization. See Third Division Award 28998.

As this Board held in Awards 3, 6 and 13, citing NRAB Third Division Awards 28998,31756 and 32748, between these same Parties, there is ample precedent for requiring Carrier to make the

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AWARD NO. 11