"As explained to you during our conference at Huntington, W. Va., and as you are well aware, it has been the policy of this company to perform all maintenance of way work covered by the Maintenance of Way Agreements with maintenance of way forces except where special equipment was needed, special skills were required, patented processes were used, or when we did not have sufficient qualified forces to perform the work. In each instance where it has been necessary to deviate from this practice in contracting such work, the Railway company has discussed the matter with you as General Chairman before letting any such work to contract.

We expect to continue this practice in the future and if you agree that this disposes of your request, please so indicate your acceptance

The December 11, 1981 National Letter of Agreement reads in pertinent part:

"The carriers assure you that they will assert good-faith efforts to reduce the incidence of subcontracting and increase the use of their maintenance of way forces to the extent practicable, including the procurement of rental eauinment and operation thereof by, carrier employees.

The parties jointly reaffirm the intent of Article IV of the May 17, 1968 Agreement that advance notice requirements by strictly adhered to and encourage the parties locally to take advantage of the good faith discussions Provided for to reconcile any differences.

In the interests of improving communications between the parties on subcontracting, the advance notices shall identify the work to be contracted and the reasons therefor." (Emphasis added)

Both parties raised new matters in their submissions that were not part of the proceedings on the property. These matters have not been considered by us. We have confined our review of this dispute, as we must, to those matters that were raised by the parties on the property.

The interaction between Rule 83 (b) and Appendix B has been the subject of several prior decisions of this Board involving these same parties and at least eight different Referees. See Third Division Awards 24399, 25967, 26351, 26436, 26791, 26792, 27295, 27585, 28486. Taken together, these awards stand for the precedent that the Carrier may not contract out scope-covered- work unless one or more of the exceptions of Appendix B are present and, before letting the contract, it has engaged in discussions with the Organization.

It is important to note at the outset that, during the handling of this matter on the property, the Carrier did not allege that the work in dispute, namely tie renewal, was outside of the scope of the Agreement or that it had not been customarily performed by the bargaining unit. Nor did the Carrier challenge the applicability of the December 11, 1981 National Letter of Agreement. Rather, carrier's position was premised on the need for specialized equipment, the lack of qualified employees and the assertion that it had complied with the discussion requirements of Appendix B.

Given the posture of the on-property record, we find that the Organization has established a prima facie case that the work involved was reserved to the bargaining unit employees. Therefore, the propriety of carrier's subcontracting action depends on whether the requirements of Appendix B have .been met. Since these requirements are in the nature of affirmative defenses, it is clear that the Carrier bears the burden to prove they were.

The thrust of Carrier's position is that it was desirous of expeditiously and efficiently replacing deteriorating concrete crossties in two areas before the winter season set in. Carrier was concerned about the stability of its roadbed over the winter if the ties were not replaced in a timely manner. Carrier became aware of the availability of a contractor-owned P-811-S Track Renewal Machine. The machine apparently is a multi-operator machine capable of performing "out-of-face" tie replacement. Carrier says the project was time.critical and it had no qualified operators of its own to run the machine nor was there time to train its own operators. In its view, Carrier properly arranged for the use of the machine, to be operated by contractor employees, and properly notified the organization in accordance with Appendix B.

The Organization contends that the contracting arrangement was a "done-deal" before the General chairman received any information about the project. The Organization says it was told on Thursday, November 2, 1989 that the work would begin the following Monday. It maintains there were no good faith discussions within the meaning of Appendix B and the National Letter of Agreement. In addition, it asserted that some of the furloughed Claimants had experience, from other properties, with the P-811-S machine. It also offered example agreements from two other properties showing that railroad employees have been effectively trained to operate the machine.

After careful review of the record, we find Carrier's position to be deficient in two respects.

Whether Carrier satisfied the discussion requirements of Appendix B and the National Letter of Agreement is in sharp dispute. With the issue joined in this manner, it was incumbent upon the carrier to prove, by providing probative evidence, that it had not let the contract before the conversation with the General Chairman. Carrier said, in its correspondence on the property, that "...the contract was not signed until immediately before the work started." However, Carrier did not produce a copy of the dated contract to corroborate its assertion. Why it did not do so we cannot say. It is not our role to speculate about matters not explained in the record. But carrier's failure to produce such evidence, under the circumstances of this record, raises the adverse inference that the document would not have supported Carrier's assertion. When this adverse inference is considered together with the timing of the conversation, occurring on Thursday with the work to start Monday, we find we have no factual basis for concluding that the contract was let in compliance with Appendix B. In light of this finding, we do not reach the related issue whether the conversation constituted a "discussion" within the meaning of Appendix B and/or the National Letter of Agreement.

The issue of the availability of qualified employees remains. Given the deadlocked nature of the assertions in this record and the requirements of Appendix B and the 'National Letter of Agreement, Carrier had the burden to establish several facts: That the use of the P-811-S machine was required for the project, that Carrier could not have leased it to be operated by its own employees, and that it did not have qualified operators nor could it train them in time. It is not clear from the record that the machine was required to accomplish the work. It was not the customary means of replacing ties. Indeed, Carrier admitted in its correspondence that it had never been used before. However, since the Organization did not effectively dispute the need for this equipment on the property, we accept Carrier's assertions in this regard. However, the National Letter of Agreement imposed an obligation on Carrier to undertake good faith efforts to rent the equipment for operation by its own employees. There is no information in the record to show that Carrier made such attempts. Appendix B also requires a showing that qualified employees are not available. The instant record is devoid of any evidence to establish what the training requirements were or what their anticipated duration might be. In short, we have no basis in the record for concluding that Carrier could not have rented the machine and performed the work with its own emplyees. Carrier had the. burden of proof on these points, but we must find that it failed to satisfy that burden.

In light of our findings, we do not have a sufficient basis for concluding that Carrier complied with the requirements of

Appendix B and the National Letter of Agreement when it contracted the work to outsiders. Accordingly, we will sustain the Claim. It appears, however, that the Claim slightly overstates the actual number of days worked and the number of contractor personnel used. Therefore, Carrier is directed to compensate the seventeen senior furloughed Claimants, at the pro-rata rate, for seventy-two hours of lost work opportunity each, together with appropriate vacation credit.

A W A R D