There are two procedural matters that must be addressed at the outset The Organization made a timely objection to certain information and argument contained in the Carrier's Submission that bad not been exchanged or discussed during the handling of the claims on the property. We have, as we must, excluded such information and argument from our considerations. In addition, Carrier initially raised a time limitation defense to Part (1) of the claim. It is noted, however, that Carrier waived this defense at the highest level.
The parts of the claim primarily raise the issues of notice and remedy as a result of the performance of the specified track work by contractor forces. The mixed practice nature of the work and Carrier's related contracting rights were demonstrated via the numerous prior Awards of the Third Division involving these same parties that were cited by the Carrier. See, for example, Awards 30067, 30205, 30267 and 31274. Accordingly, Parts (1) through (4) must be denied.
Given the mixed practice, however, advance notice of the planned contracting of work is ordinarily required. See Award 1 of Public Law Board No. 5567 between these same parties.
The Carrier contends that the existence of emergency circumstances made notice unnecessary. It also noted that the "... Claimants were all fully employed and ... worked tremendous amounts of overtime during the timeframe in question." The Organization did not dispute Carrier's assertions regarding full employment and overtime. Nor did the Organization dispute that heavy rains in late December 1991 caused mud slides that shut down the main line for several days and resulted in 10 mph slow orders for rail traffic in the area for several months.
The Organization's primary contention is that no emergency existed at the time the contracted work was performed. In its view, therefore, Carrier was required to provide the requisite notice called for by Article IV of the Agreement and the December 11, 1981 Hopkins/Berge Letter.
As noted In Third Division Award 12267, there is a point where every emergency ceases and the contract resumes its governing role. It is also well settled that assertions of emergency circumstances are treated as an affirmative defense. As such, the burden of proving the nature, a:tent and duration of the emergency must be satisfied by the party asserting its existence. Form 1 Award No. 31835
The on-property record for each of the instant claims shows that Carrier's main line was shut down for approximately one week due to the rains. However, the disputed work was not performed by the contractor until well after the period of the heavy rains. Part (1) of the claim places the disputed work more than two months later. Parts (2) through (4) involve work performed even later in 1992.
The December 11, 1981 Hopkins/Berge Letter between the instant parties reads, in pertinent part, as follows:
The Organization disputed Carrier's on-property assertion of continuing emergency circumstances. It contended that any emergency expired after the main line was reopened.
Given the dispute over the duration of the emergency as well as the strict adherence intent underlying the Article IV notice requirement, we find Carrier had to satisfy one of two alternative obligations. It was either incumbent upon the Carrier to provide advance notice to the Organization or, in the alternative, to produce appropriate evidence satisfying its burden of proof to establish that continuing emergency circtmmstances excused the notice requirement. The Carrier's responses on the property do not provide such evidence.
Carrier also relied on Third Division Award 26708 involving other parties that suffered similar rain-induced problems. In that case, however, the use of contractor forces began immediately, not months later.
On the record before us, therefore, we find that Carrier violated the advance notice requirements of Article IV. However, the remedy question for such a violation, under the circumstances of this claim, is also well settled between these parties. Prior decisions have awarded monetary compensation only to furloughed employees or employees who were working in lower paid classifications and were qualified to perform the higher rated work done by contractor forces. There is no evidence of furloughed employees on this record. In addition, there is no evidence that any of the Claimants are entitled to differential compensation. As a result, no monetary compensation is awarded Form 1 Page