Upon the whole record and all the evidence, after September 23, 1988 hearing in Washington, D. C., the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.
furlough to operate the Torsion Beam Tamper No. 5057 between M.P. 290 - 257 on the Carrier's Southern Tier Division in the period March 15 - 30, 1985, and that instead, the carrier assigned the regular Track Foreman headquartered at Elmira, New York, Mr. T. B. Adams, to operate the Torsion Beam Tamper. The Carrier's action is alleged to have violated Rules 3, 4, and 11 of the Schedule Agreement.
Compensation for lost wages is requested for each of the days on which Track Foreman Adams operated the Torsion Beam Tamper, together with one month's insurance premium.
The Carrier asserts that the assignment of Track Foreman Adams to operate the Torsion Beam Tamper was less than four (4) hours on each of the claim dates, which was permissible under Rule 19, and that on this basis the claim should be denied.
The Carrier's assertion about the operation of the Torsion Beam Tamper by Track Foreman Adams is reflected in the Division Engineer's April 22, 1985 letter which states in pertinent part:
Thereafter, by letter dated by January 8, 1986, the Organization requested verification of the Carrier's statement about
The Carrier did not provide information indicating the amount of Track Foreman Adams' operation of the Torsion Beam Tamper on each of the claim dates.
After due study of the record as a whole, inclusive of the submissions presented by the parties in support of their positions in the case, the Board concludes and finds that the claim is meritorious and that a sustaining award for lost wages is in order.
The confronting Agreement does not afford discovery proceedings to the petitioning party, and normally there is no obligation on the Carrier to provide information which tends to prove a controverted claim. However, the Carrier's response to the in-
stant claim, namely that, Foreman Adams operated the Torsion Beam Tamper less than four (4) hours daily, constituted an affirmative defense to the claim. such a defense, if not challenged by the adversary party, becomes the accepted fact of the case. Here, though, the Organization challenged the verity of the affirmative defense and demanded proof in the form of the Dispatcher's log showing the amount of time the track between Mile Posts 290 and 257 was out of service due to the operation of Maintenance of Way equipment.
The Carrier did not provide the demanded proof, and, under traditional principles of assessment of evidence concerning controverted facts, an adverse inference against the Carrier's position arises from such failure to produce the demanded proof. Therefore, the Carrier's affirmative defense is not established factually and the claim will be sustained.
In view of the foregoing, and based on the record as a whole, the claim will be sustained as previously indicated.