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.
According to the record developed on the property, the pivotal issue is whether the seeding and soil mat installation was a discrete individual project requiring a separate contracting notice and conference with the General Chairman or was it essentially incidental work integral to a larger project where proper compliance with the notice and conference requirements was demonstrated.
On February 2, 2001, the Carrier issued a general contracting out notice regarding possible projects for that year. It listed "Slope Work" as Item 6b and "New Siding Construction," with its Canadian Mainline project in question specified as Item 11a. On March 14, 2001, the Carrier sent the General Chairman another notice announcing its plan to contract out the siding construction beginning April 2, 2001.
Letters to the Carrier from the General Chairman dated March 20 and 30, 2001 show that the notice was received and a preliminary conference was held sometime prior to March 20. A more detailed conference was held on March 28. The General Chairman's second letter does not reflect agreement with the Carrier. Indeed, it contended that Carrier forces were entitled to the work and closed by threatening the submission of ". . . time claims upon commencement of the project." Form 1 Award No. 36852
For whatever reason, which is not revealed in the on-property record, the Organization did not challenge the siding construction project. It apparently waived its claim to the work. No claims were filed within 60 or even 90 days of the April 2, 2001 commencement date.
On June 20 and 25, 2001 contractor forces performed the disputed seeding and soil mat installation work. On July 16, 2001, the Organization filed a claim for the contractor hours expended. As the record developed, it became clear the Organization also alleged a notice violation for this work.
In its September 11, 2001 reply, a date which will also live in infamy for reasons unrelated to this claim, the Carrier asserted that the ". . . work of seeding and installing soil mats on slopes for bank stabilization was an integral part of this grading work and was previously identified in the contracting out letters." This assertion was never effectively refuted on the property.
In its November 13, 2001 reply to the Organization's appeal, the Carrier essentially reasserted this contention when it said, "The siding construction was a major undertaking and included the work in question." This was also never effectively refuted by the Organization.
Given this record, the Organization's claim must be denied. It is well settled that unrefuted assertions of material fact become established as fact for purposes of evidentiary analysis. No further proof is necessary. Thus, on this record, we find that the disputed work was incidental to and an integral part of the overall siding construction project for which the Organization had been given notice and the requisite conference was held. The Organization apparently chose to waive its rights. Nothing in the parties' Agreement was cited that required the Carrier to piecemeal the project and deal with each of the constituent phases of the work as separate individual projects.