"Based on what is before us, we are satisfied that the Carrier entered into an arrangement whereby TII'P removed the ties on an 'as is, where is' basis. As such, no violation of the Agreement has been shown. See Third Division Award 30637:

'The ties were sold on an 'as is, where is' basis. Accordingly, the removal by the outside concern did not violate the Agreement since the ties were no longer owned by the Carrier.'

See also, Third Division Awards 30080, 30224, 30231, 30901, 31716 and Awards cited therein."

Because the Carrier's position in this case is an affirmative defense, the Carrier has the burden of demonstrating the validity of that defense. The Carrier has not done so.

First, the sales order relied upon by the Carrier which sells material "as is, where is" to PRS is dated February 10,1992 and, by its terms, states that "[t]his permit... expires sixty (60) days from date of execution unless otherwise indicated in this contract" We closely examined the document and can find nothing which extends that sales order to cover this disputed work performed almost four years later in 1996. There is a reference to an extension with language stating "[i]ncrease sale order to 100 per DG Hartley 8/27/92." But again, in light of the expiration language and the fact that the disputed work was performed well over three years after that a:tension, that purported extension is insufficient for us to rind that the document relied upon by the Carrier covered this specific work.

Second, we cannot tell where the 1992 document relied upon by the Carrier applied. In that document there is no discernible reference to specific or even general locations for the work to be performed, much less to the location of the work involved in this case.

This doeumentconstitutestheCarrier'saffirmativedefense. We cannot find that a four year old sales order which apparently expired 60 days after its execution or may have been extended for an undisclosed period three years prior to the performance of the disputed work which further makes no reference to where the work was to be performed is sufficient to demonstrate that the work in dispute in this case was the collection of scrap materials sold to an outside concern on an "as is, where is" basis so as to permit the Carrier to avoid its obligations under the Agreement. Perhaps the material was sold on an "as is, where is" basis. But the Carrier's obligation in this case was to substantiate its asserted defense with something more than the type of document provided in this matter (e.g., a more relevant document, statements, etc.). However, on the basis of this record, we cannot speculate. The Carrier's affirmative defense is insufficient.

This was scope covered work. Rule 2 provides that ". . . all maintenance work in the Maintenance of Way and Structures Department is to be performed by employees subject to this Agreement except it is recognized that, in specific instances, certain work that is to be performed requires special skills not possessed by the employees and the use of special equipment not owned by or available to the Carrier" and "[i]n such instances, the Chief Engineering Officer and the General Chairman will confer and reach an understanding setting forth the conditions under which the work will be performed:" Nothing in the record shows that those exceptions apply orthat understandings were reached concerning conditions for the performance of the work. Nor was prior notice of the use of outside forces given. On the merits, the claim must be sustained.

As a remedy, the Claimants were deprived of work opportunities when the Carrier used outside forces to perform the work. The Claimants shall be made whole at the applicable Agreement rate. The matter a remanded to the parties to determine the number of hours of work performed by the outside forces on this particular project. The Claimants shall be compensated accordingly.

AWARD