Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 32743
 Docket No. MW-30302
 98-3-92-3-30

 The Third Division consisted of the regular members and in addition Referee Edwin H. Berm when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM:





Form 1 Award No. 32743
 Page 2 Docket No. MW-30302
 98-3-92-3-30
 June 19, 20, 21, 22, 25, 26, 27, 28, 29, Marlatt Contracting
 provided the Carrier with one (1) 580 back hoe for the purpose of
 lining #5 track, and installing rail. Also installing ties, and ballast
 on the round house track.'






FINDINGS :

 The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Without prior notice to the Organization, the Carrier contracted with outside forces to perform the work on dates as described in the claim.
 Form I Award No. 32743
 Page 3 Docket No. MW-30302

Initially, the Carrier's argument that some of the work involved was removal of material sold by the Carrier and therefore could be removed by outside forces is rejected. See Third Division Award 29016:


      "The Carrier's contention is in the nature of an affirmative defense. If proven by substantive evidence, we would agree that the work would cease to be within the scope of the Agreement once title to the material transfers. However, the evidence necessary to substantiate that critical point is lacking. Significantly, the Carrier never furnished any documentation which would indicate a sale took place .... Assertions and arguments, it must be remembered, cannot be given probative evidentiary weight."


The status of this record on this issue is similar. The Organization asserted that the work was Scope covered. The Carrier contended that certain work could not be Scope covered because of a sale of material. As an affirmative defense, the burden was on the Carrier to demonstrate the bona fides of that assertion, i.e., that there was, in fact, a sale. Beyond mere assertion, that was not done.


This contracting dispute is similar to the many this Board has faced with these parties concerning contracting of claimed Scope covered work. Under Article IV, exclusivity is not a necessary element to be demonstrated by the Organization in contracting claims. See e.g., Third Division Award 29792 ("As explained more fully in .-sward 29007, however, a showing of less than `exclusive' past performance of the disputed work by the employees is sufficient to establish coverage for purposes of Article IV Notice and conference provisions").


Here, under Article IV, we are satisfied that the described work falls "within the scope of the applicable schedule agreement." That Rule further obligates the Carrier to give prior notice of its intent to contract such work, which was not done in this case. The failure to give notice frustrates the process of discussions contemplated by that Rule. See Third Division Award 31280:


    "The function of the notice is to allow the Organization the opportunity to convince the Carrier to not contract out the work. Therefore, that opportunity to convince the Carrier to not contract out the work was prevented by the Carrier's failure to give notice."

Form 1 Award No. 32743
 Page 4 Docket No. MW-30302
                                              98-3-92-3-30


As a result of the Carrier's failure to give notice, a violation of Rule IV has therefore been demonstrated.


With respect to the remedy, we note that this dispute arose in 1990. "The claim will be sustained, but only for those Claimants in furlough status at the time the contractor performed the work." Award 31280, supra. Although the Carrier asserts to this Board that no Claimants are entitled to relief because all were working, on the property in the Carrier's September 11, 1990 denial, there is acknowledgment that Claimant Kinney may have suffered monetary harm. See also, the Carrier's December 19, 1990 denial discussing the fact that not all of the Claimants were fully employed on the dates the contractors performed the work. We are therefore not satisfied that the record is clear on the extent of relief, if any, Claimants may be entitled to. The matter is therefore remanded to the parties to determine whether any of the Claimants were in furlough status on the dates the contractors performed the work in dispute. Those furloughed Claimants, if any, shall be made whole.


                        AWARD


      Claim sustained in accordance with the Findings.


                        ORDER


This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


Dated at Chicago, Illinois, this 23rd day of September 1998.