r
NATIONAL RAILROAD ADJUSTMENT BOARD
 I
Docket No. MW-36529
 -3- -3- o

 T Third d Division consisted of the regular members and in addition Referee
 Ili. of stein hen r as rene.

 TI ES T DISPUTE:
STATEMENT
(Brotherhood f Maintenance y 1 yes

 (Duluth, Missabe and Iron Range Railway Company

 "Claim of t System Committee f t Brotherhood tat:





(3) As a consequence the violations fare i arts (1)
 and/or (2) above, the senior foreman n the tree (3) senior
 mechanics in the Missabe Division Bridge and Building
 Department shall now each be compensated for eight (8) hours
 y at their respective strait time rates f ."

 I

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

 e carrier carriers and the employee or employees involved i is dispute are respectively carrier and employee within the meaning of the Railway Labor Act,

 vu a 1, 3.
 .7
 e .
 ®-01-3®
 This the Adjustment has jurisdiction. over t is
 involved i.

October 1, , t Carrier e Mesabi Bituminous, . t
 lackto t the Midway Road crossin ear the intersectio oHighway .
 According t the October 1 , 1999 clai flied the General Chairman, "
 contractor use anal labor r raking and shoveling and then rolled/tamped the
 blacktop without a paving machine." The General Chairman further asserted that,,,
 "I the past, if paving machine not needed, e i Building
 Department would perform the work. Once the carrier knew they would not need a
 paving machine, they should have cancelled the contractor." The manual paving
 described above violated Rules s ells t April 2 ,199 Letter
 Agreement, the General Chairman emphasized.
n traditionally done blacktop at gra crssi twin machines
 ere used." t further stess tat, pursuant S . f
 Agreement, the Carrier i not iv the l air y advance i
 notice of its intent t tract t e v, i rifer any
 opportunity to discuss the matter in conference.

 The Organization emphasizes that the April 26, 1996 Letter of Agreement
 allows the Carrier t subcontract lcto i work k at grade crossings "if a paving
 machine is necessary." t is stresses, hever, tat a Letter ores
 not contain n provision tat relieves the Carrier of its duty t provide prior is
 under Supplement o. . Furthermore, in this specific case, the Organagain
 ization auargues that it was not accorded any opportunity to meet and discuss the proposed
 subcontracting ie Carrier, ter requirement f lent . , the
 izati also points t.

 The Carrier contends that it was incumbent upon the Organization to
 establish s a i facie matter, tat the disputed accs

arrier, t General Chairman notified July 2 , 9 , a included e
 Form I Page 3

 Award No. 37599
 -52

notice a"reference tour r past practice by which blacktop work with a paving
 machine ill be assigned r."
vas initially alied on October 1an 15,199 ; ever, October its
 emoperated ployees vin machine in order "feather" the blacktop an
 thereby properly co plate t job, the Carrier further set. also averred
 that, "the Organization, y claiming only one of a tree as tractor
 works n the crossing, unto break the project into pieces i n hopes of
 emonstratin violation the April ,1 Letter re ant."

it vi machines in the past. According to t Engineer's s claim denial:












The Board carefully y reviewed the on-property record before us. We find
 that, under the particular factual circumstances, the Carrier as required y
 Supplement . (c) five the Organization prior once f its intention t se e
 paving contractor, a all Organization a opportunity t discuss the
 matter it t Carrier before t Carrier's undertaking e subcontracting work.
 Rules 2 a not, per se, entitle the e Claimants to the manual blacktopping
 r claimed ere. However, Its - lackt t April 2 ,1 Letter
 Agreement states, " lc to i grade crossings ay e contracted if i
 machine is necessary."
 Form 1
 Page 4
e. T, given particular ct, t clear language f Supplement . (c),
 and t language f Its , ova, is arguably reserves manual lac t i
 -work tot he employees, a rule notice should awe n se n-
 roper it Division r 2 , 411 (involving lcki ), 711,

The harrier's position that it "provided written notice intent tire
 vi contractor y letter date July 23,1 " is not supported ed by the record, we
 further find. From our careful review of that document, it appears that the July 23,
 1 letter s follow-up to o a notice purportedly received by the General
 air l , , "regarding tcti the f lc vin f
 two at-grade crossings, n 452, , with paving machines ...."

 ever, the record before uocoti copy any such letter
 supposedly receive y the General Chairman, nor is ere any correspondence i
 the record which c fir s that artier s engaged in a discussion concerning the
 vin f t i a crossing y contractor. I fact, t Organization
 strongly denies vin receive once, stating, "ins are Carrier
 should v a i its ssession copy said tics."

 The record also contains no documentary evidence from the Carrier as to
 r mailing I the Organization's cat f notice t s s
 affirmative defense that the required tic s actually sent.Under

ere circumstances, , the Board must accept the Organization's contention otherwise as factual, n rule at the Carrier's affirmative defense s not substantially v.


lCarrier's]failre to introduce such vital evidence into the proceedings hen i
 either the records i its possession could lily have tai a vitas
 t conclusion that the evidence unfavorable."
 Therefore, for the foregoing reasons, the claim must a sustained result
 f Carrier's apparent failure provide t required tics, 1.
 Furthermore, 1 from rec t Organization establish i
 facie that a Claimants arguably erases claim to the manual paving work.
 e Board ale holds t the Carrier's breach t e notification requirement
 set
 t in Supplement 3 cestlly is the Carrier's " i defense."
 Form 1 Award No. 37599
 t
 . No. NBV-36529
 ®_1®.
 c subject have e proper topic isussi uric
 ctrctiu ng conference, we note.

 The arier's failure to give advance notice as required by upplement No.
 c) the Agreement regarding lto pin issue e here resulted in a
 1st opportunity, w also conclude. As a result, Claimants title t
 the. compensation requested, we specifically rule. See Third Division Awards 28711,
 1. identified but-unnamed Claimants shall thus
 309439 37352 and.3747 The four
 each i eight ours s at their, respective straight time rates of pay.



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

t Award effective before following t st t t i
 transmitted parties.
 NATIONAL RAIILROAD ADJUSTMENT BOARD.
 By Order of Third Division

 to Chicago, Illinois, iSeptember 2005.