(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned machine operator's work, in connection with a washout, to outside forces beginning September 28, 1983 (System File 210-A8-8316/11-1940-20-187).

 (2) The Carrier also violated Appendix No. 8 (Article IV of the May 17, 1968 National Agreement) when it did not give the General Chairman advance written notice of its intention to contract said work.

 (3) As a consequence of the aforesaid violation, Group 5 Machine Operators R. Gray, T. Ferguson, V. Hart, S. Moser and M. LaFaye shall each be allowed pay at their respective rates for an equal proportionate share of the total number of man-hours expended by outside forces in performing the work referred to in Part (1) hereof."

 OPINION OF BOARD: On September 25, 1983, heavy rainstorms caused extensive
 damage to approximately thirty miles of roadbed, banks,
 dikes, channels and bridges on the Carrier's right-of-way in the Fourth
 District of its Albuquerque Division. The Carrier's operations were inter
 rupted and it immediately engaged in emergency reconstruction work. To assist
 the Carrier's forces in this attempt to return its operations to normal, the
 Carrier contracted with an outside contractor. The Carrier did so in accord
 ance with its Letter of Understanding with the Organization which is dated
 September 28, 1956. This Letter states the following:

On September 27, 1983, the trackage in this District of the Albuquerque Division was returned to service. The Carrier continued to use the outside contractor after that date. The record shows that from September 27, 1983, through November 18, 1983, contractor's operators performed approximately
 ...861 man-hours of service" with two bulldozers and a front-end loader which belonged to that Company.
                        Docket Number MW-26238


On October 19, 1983 the General Chairman of the Organization filed a Claim on behalf of the Coast Line Group 5 Machine Operators named in the Statement of Claim. This Claim alleged that the Carrier was in violation of various Rules of the current Agreement and requested as relief payment "...for equal and proportionate shares of all hours worked by Herschkowlitz Construction Company since Septe responses to this Claim the Carrier stated that it had used all Group 5 equipment and operators "... work involved" after September 27, 1983, and that "...the Claimants and their machines were used on the Fourth District until the work was completed." Although the parties appear, in their exchange on property, to want to resolve this case as one which falls under the correct interpretation of the Agreement's Scope Rule, the foc ...emergency existed" after September 27, 1983. If it did, the Carrier was correct in continuing to apply the Letter of Understanding of September 28, 1956 (Appendix 8 of the Agreement). If an emergency did not continue to exist after September 27, 1983, the Claim has merit.

        The position of the Organization is as follows. It states that

...Group 5 employes have been force reduced each of the last two winters, therefore, these contractor's forces (after September 27, 1983) are causing a loss of work opportunity for Group 5 Coast Line Employees." Even though the Claimants continued to work throughout the reconstruction this argument points to future potential loss of work because of the presence of the contractor. The most specific argument proposed by the Organization is that after the tracks were opened up on September 27, 1983, the "...emergency ceased to exist." According to the Organization the restoring of "...dikes, roadbeds, banks, channels and bridges" was "...routine work" and it should have been reserved for the members of its craft. Further, the existence of "...slow orders" after September 27, 1983, were also not sufficient proof, according to the Organization, to substantiate that an emergency existed.

 What exactly was the factual situation on the some thirty miles of right-of-way after September 27, 1983? There were slow orders issued although the parties disagree, in the record, on exactly how many. At least the following were issued on Sept affected territories:

        "Speed limit 10 MPH over bridge at Post 84.4 between Kirkland and Skull Valley, Fourth District.


        Speed limit 10 MPH over bridge between Mile Posts 43.3 and 43.5 between Tucker and Kayfour, Fourth Division.


        *Speed restriction removed October 10, 1984.

                        Award Number 26708 Page 3

                        Docket Number MW-26238


          Speed limit 10 MPH between Mile Posts 51.3 and 51.9 over shoo-fly between Skull Valley and Tucker, Fourth District.


          Speed limit 10 MPH over bridge between Mile Posts 54 and 54.1 between Skull Valley and Tucker, Fourth District.


          *Speed limit increased to 30 MPH October 14, 1984. *Speed restriction removed December 5, 1983.


          Speed limit 10 MPH over bridge between Mile Posts 54.8 and 55 between Skull Valley and Tucker, Fourth District.


          *Speed restriction removed October 10, 1983.


          Speed limit 20 MPH over bridge between Mile Posts 80.2 and 63.3 between Skull Valley and Tucker, Fourth District.


          Speed limit 10 MPH over bridge between Mile Posts 85.4 and 85.8 between Kirkland and Skull Valley, Fourth District.


          *Speed restriction removed October 18, 1983.


          Speed limit 10 MPH over bridge between Mile Posts 86 and 86.2 between Kirkland and Skull Valley, Fourth District.


          Speed limit 20 MPH over bridge between Mile Posts 89 and 89.1 between Kirkland and Grand View, Fourth District.


            *20 MPH speed limit over bridge between Mile Posts 89 and 89.1 was reduced to 10 MPH, effective October 2, 1983."


Thus some nine slow orders were issued on the territory in question with speed limits, in most cases, reduced to 10 MPH. Several of these orders were not lifted prior to the departure of the contractor. The Organization cites Third Division Award 19948 to support its contention that slow orders "...alone do not lead to the ultimate conclusion of emergency." The Board is in agreement with the conclusions of this Award given the circumstances under consideration. In that case a fire the Carrier decided to replace it with a steel structure. B&B forces installed the structure and an outside contractor did the fill work. In the interim, a
                        Award Number 26708 Page 4

                        Docket Number MW-26238


slow order of 10 MPH was in effect. It took the contractor some ten days to finish the work although it only worked five of those days. The Board reasoned in that case that the not reflect a policy of immediate action by the Carrier" and it ruled that no emergency existed and sustained the Claim. Such facts are in considerable contrast to those of this case both because of the large number of slow orders here under consideration and because of the "...pace of the work" required of the contractor by the Carrier. That pace is best underlined by correspondence by the Organization itself to the Carrier wherein it states, in its original October 19, 1983, Claim letter, that "...contractor's forces have worked 10 hours per day, 7 days per week since September 28, 1983 ...." Such pace does not suggest "...routine work." In view of this, Award 19948 cannot reasonably be considered to have precedential value for this Claim. There is no dispute that parts of the right-of-way along the thirty miles sustained major damage. For example, the Carrier states in its correspondence of June 6, 1984, to the Organization that:

          "several bridges between Mile Posts 43 and 89 on the Fourth District did sustain major damage. For instance, at Bridge 51.6, a 200 ton section of the concrete drainage box broke off and washed 35 feet downstream together with most of a 100 yard embankment 50 feet high (see attachment). At this location, it was necessary to construct a shoo-fly on the upstream side of this bridge in order to affect repairs. At Bridge 84.4, some of the supporting timbers were completely destroyed."


The record before the Board in this case paints one of fairly widespread destruction by the rain for slow orders for up to six weeks after that date in some sections of the Carrier's track in the Fourth District of its Albuquerque Division. The Carrier states that it did not have sufficient manpower among its own employees to bring the situati the pace of the work performed by the contractor while it was on property.

 In Claims such as this one the burden of proof lies with the Organization as moving party (Secon Award 15670). A study of the record warrants the reasonable conclusion that such burden has not been met in this case. The Carrier was not in violation of the Agreement when it continued to use the contractor after September 27, 1983, under the provisions of Appendix 8 of the Agreement. The record reasonably establishes that an merits, the Claim must be denied.

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

                        Award Number 26708 Page 5

                        Docket Number MW-26238


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest.
        Nancy J r - Executive Secretary


Dated at Chicago, Illinois, this 23rd day of November 1987.

LABOR MEMBER DISSENT

TO

AWARD 26708 - DOCKET MW-26238

(Referee Suntrup)


    The Majority erred when it held that:


    "The record before the Board in this case paints one of fairly widespread destruction by the rains on September 25, 1983. Such implied the need for slow orders for up to six weeks after that date in some sections of the Carrier's track in the Fourth District of its Albuquerque Division. The Carrier states that it did not have sufficient manpower among its own employees to bring the situation back to normal in several days. The record reasonably supports this contention, both by the number of slow orders issued and by the pace of the work performed by the contractor while it was on property."


The Majority found that the record in this dispute supports the Carrier's position that an emerg review of the entire Award discloses at least two (2) inconsistencies in the reasoning relied upon in arriving at such a finding.

 First, the majority points to a picture of fairly widespread destruction caused by the rains of Albuquerque Division. However, this dispute involved only a small portion of the Albuquerque Division. This is important because the slow order listed by the Majority involved bridges which were located within the cl.3im area, but were not affected by the work performed by the contractor's forces. The fact is that it was undenied by the Carrier that such was the case. This was clearly established in the record of the handling of this dispute on the property and was pointed out to this Board. If the contra,~- tor's forces were nut performing work which materially affected the slow
 orders, then the fact that those moment insofar as the disposition

 Second, the Majority found i that it did not have sufficient ma
 the pace of the work performed by

 slow orders existed should have been of no

 of the instant claim was concerned.

 t

 significant that the Carrier asserted n power and in support thereof, pointed to the contractor's forces. However, it was

 undenied in the record and pointed out to the Majority that the Carrier's forces were not working any overtime hours during the claim period. This is particularly striking when consideration is given to the fact that prior to September 27, 1983, the date on which the Carrier's train traffic was restored in the claim area, the Carrier's forces were performing significant amounts of overtime service. It was pointed out by the Organization that when the Carrier's train traffic was restored, albeit with the aforementioned slow orders, the Carri overtime would be authorized. In other words, the Carrier's employes were at home while the contractors employes were working in their place. Hence, it could hardly be argued that such a circumstance supported the Carrier's contention that an emergency existed.

 We submit that the Majority ignored the Organization's undenied arguments concerning the emergen Organization had not met its burden of proof. Therefore, I dissent.

 D. D. B rtholomay
 Labor Member