PARTIES TO THE DISPUTE :

 TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS

BROTHERHOOD OF MAINTENANCE
 OF WAY EMPLOYEES

 STATEMENT OF CLAIM :



OPINION OF BOARD: Pursuant to Article IV,_ on September 21, 1994 Carrier's Chief

 Engineer advised the General Chairman of its intent to contract out the work of asphalt paving at six

 (6) different railroad crossings in St. Louis Missouri. In his reply to Carrier's notice, requesting a

 conference, the General Chairman asserted that it "had never been Carrier's desire in the past to

 contract out road crossings such as these". The General Chairman further asserted that the "same
AWARD NO. 14 NMB CASE NO. MW-32721 UNION CASE NO. COMPANY CASE NO. crossings had been maintained by Carrier B&B forces for years", and that on each of those occassions, Carrier had the necessary personnel and rented any equipment it did not own necessary to perform the crossing paving work at issue. At the September 30, 1994 conference, the General Chairman renewed his objections regarding Carrier's proposed asphalt contracting project, asserting that the very crossings at issue had been maintained and rebuilt by Carrier forces "several times" in prior years." For its part, Carrier stated that its supervisors, employees. and equipment were "fully committed to other work for the rest of the construction season"and further contended that:












noted supra, in which it alleged that Carrier had violated the Schedule Agreement, in addition to
 the 1981 Letter of Understanding, when it contracted out the asphalting work in dispute. The

 General Chairman reiterated that the asphalt paving of crossings listed in the contracted project was -

 work identical to that which had previously been performed by B&B employees, that any past

 contracting out of larger paving projects like parking lots had been pursuant to agreement with the
                                            ?Le loe6(*Avo "l


                                      AWARD NO. 14 NMB CASE NO. MW-32721 UNION CASE NO. COMPANY CASE NO.

Organization after Article IV notice, that the crossing paving aspect of the projects at issue required -
 no "spreader box" or other specialized equipment and that the crossing paving was readily severable
 from the roadway approach aspect, which the Organization did not claim. In further processing, the
 General Chairman also asserted that he personally had performed the work of asphalt paving on
 these very crossings in years past, offered written statements from Agreement-covered employees
 describing their performance of this work regularly, customarily and primarily, if not but
 "exclusively", for more than thirty (30) years and presented detailed evidence dating back to 1963
 to rebut Carrier's bare assertions concerning "hot asphalt" vs. "cold patching" in the prior
 performance of that work by Agreement-covered employees. Finally, the General Chairman stated:

    I also advised you that the crossings and the road were two different jobs and that they would be performed at different times, and this indeed the fact, on November 1, 1994 I went to these locations and found out that the contractors were digging out the crossings not the road and had started performing the crossings as we have for years without a spreader box, one crossing at a time also with a similar roller as the carrier had rented for the B&B employees in the past, on November 11, 1994, 1 went back to this location to find out that all off the crossings had been done but the street had not been asphalted.

Aside from characterizing the Organization's evidence as "self-serving", Carrier did not
 effectively refute any of that evidence in its final denial of the claim. For reasons explained fully
 in Awards 3,4,6,10, 11 12 and 13 of this Board, the Organization presented persuasive detailed
 record evidence of aprima facie violation of the Scope Rule in the contracting out of the work which
 is the subject of this particular claim, which Carrier's generic and completely unsupported counter
 assertions failed to effectively rebut. As this Board held in Awards 3, 6, 11, 12 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 named Claimants whole for the proven violation of the
 Scope Rule in this case.

                          -3-

                                          Fop 60086 Awo l~f


                                    AWARD NO. 14 NMB CASE NO. MW-32721 UNION CASE NO. COMPANY CASE NO.

There is a divergence of authority on this property concerning payment ofmonetary damages to "fully employed Claimants", but for reasons articulated by the Third Division in Awards 31756 and 32748, we find such damages appropriate in this case. Cf., Third Division Awards 29938 and 30829. As in Third Division Award 31756, we will remand the matter to the property for the Parties to determine the number of hours outside contractor forces spent between October 31 and November 11, 1994, performing the work of asphalt paving the crossings (but not the roadway work) at the six (6) locations described in Carrier's Article IV the notice letter of September 21,1995. Once the final determination is made as the number of such hours and damages have been calculated at the applicable wage rates, we further order that the liquidated damages be divided equally among the employees named as Claimants in the instant case (not including Claimant R Hoffman but including Claimant Ramirez, unless Carrier can show that he released or waived this claim).


                        AWED


      1) Claim sustained to the extent indicated in the Opinion.


      2) Carrier shall implement this Award within thirty (30) days of its execution by a majority of the Board.


                  Dana Edward Eischen, Chairman

                Signed at Spencer, NY on August 26, 2000


Union Me her J3 / /OO Company Member