In its Submission before this Board, the Carrier advanced several new arguments. It asserted that Claimants had no contractual right to the work because exclusivity was not proven and because, historically, other employees, as well as outside contractors, have performed the disputed work. It also asserted that there was insufficient time for Carrier to call out furloughed employees. While those arguments would have been duly considered had they been raised on the property, it is quite well established that the Board cannot consider argument or evidence de novo. See, Third Division Awards 27614; 17231; 19722. Accordingly, we have confined our review of this case to the arguments and evidence presented during the handling of the matter on the property.

So stating, it is clear that this case turns on whether emergency conditions existed on the claim dates so as to warrant the use of Welders and outside manpower. Having asserted the affirmative defense of emergency, Carrier assumed the burden of establishing on the record that one did in fact exist. See Third Division Awards 20223, 18393, 18331. Insofar as the incidents of April 5 and 6 are concerned, this Board is satisfied that Carrier met its evidentiary burden. The organization never refuted Carrier's claim that the snow storm of April 5, 1987 was a freak incident which created havoc on the property and which demanded prompt action to keep the railroad open. Instead, the organization merely contended that Claimants and equipment "were available" to perform the work. However, carrier is given wider latitude in getting necessary work performed under emergency circumstances, as the Carrier has argued. We are not in a position to say that Carrier's judgment or course of action was arbitrary, capricious or unreasonable under these facts as to the conditions which existed on April 5 and 6, 1987.

The assignment of Welders to the Holden derailment stands on a different footing however. In that instance, Carrier merely asserted on the property that the fact of the derailment itself constituted an emergency. No probative evidence was offered to counter the organization's assertion that the mine continued to operate because only one of the double tracks had been closed as a result of the derailment. Consequently, we are unable to presume an emergency situation existed on the basis of the record as it stands, based on the proofs available to the Board. There is a violation here.

Accordingly, we find that Carrier did not violate the Agreement when, without notice, it assigned outside contractors to perform snow removal work, nor did it violate the Agreement by assigning Welders to perform snow and tree removal on April 5 and 6, 1987. Paragraphs one and two of the instant claim, therefore, are denied. The Agreement was indeed violated when Carrier assigned Welders instead of Trackmen to perform work in connection with a derailment at Holden, West Virginia on April 9 and 10, 1987. That portion of the claim -- paragraph 3 -- is sustained, and Claimants shall be paid the appropriate Trackmen's rates for the lost work opportunity on those dates.

AWARD