"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier allowed and assigned outside forces (Fox Contractors, Inc.) to perform Maintenance of Way and Structures Department work (operate skid loader and grader) in connection with spreading gravel and grading the Carrier service road adjacent to the main track between Mile Posts 87.1 and 88.0 near Janesville, Wisconsin on October 12 and 13, 2006 (System File 8WJ7503T/1467512 CNW).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with proper written notice of its intent to contract out the above-referenced work or make a good-faith attempt to reach an understanding concerning such contracting as required by Rule 1(b).

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants D. Kopp and C. Moore shall now each be compensated at their respective rates of pay for an equal and proportionate share of the thirty-two (32) man-hours

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.

Parties to said dispute were given due notice of hearing thereon.

The Organization claims that the Carrier contracted out scope covered work without prior notice in violation of Rule 1(b). The only probative evidence in the record upon which the Board can rely comes from a statement from a Carrier officer asserting that Seneca Company uses the Carrier's access road to get to its fields; Seneca took it upon itself to make repairs to the road using a contractor; Seneca did not charge the Carrier for the repairs; and Seneca did not advise the Carrier of its actions.

From the record, those are the facts the Board has before it. The Organization is skeptical that the Carrier would allow an outsider to perform the work as described and in the manner described. However, we have nothing before us to refute those assertions. Those facts therefore become the operative facts upon which this case must be decided. Under those facts, the Organization has not carried its burden of proof. See Third Division Award 31013:

"The determinative issue is whether the disputed work of installing the pipe was contracted out under Carrier's control. This Board has consistently held that where work is not performed at Carrier's instigation, nor under its control, is not performed at its expense or

This claim shall therefore be denied.

AWARD