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.
This dispute involves Carrier's contracting of snow removal work from its property roadbeds on the claimed dates without prior notice to the Organization.
The substance of the Organization's argument is that snow removal work falls within the Scope of its Agreement, and that Carrier was therefore required to give the General Chairman 15 days prior notice before contracting, relying on Public Law Board No. 3781, Award 7; Third Division Awards 31752, 19899. It contends that Carrier's failure to do so is sufficient grounds upon which to sustain the claim, noting that Claimant was a furloughed employee available to perform the work in issue. See Third Division Award 31871. While the Organization does not dispute Carrier's asserted need for additional snow removal equipment on the dates in question, it argues that Carrier's inclusion in its 1992-1993 Winter Program of a Contractor Agreement for both equipment and operators for snow removal on an as needed basis reveals a premeditated violation of the Agreement. The Organization contends that Carrier should have contracted for equipment without operators as it does during the production season, since it knows that there is a surplus of furloughed qualified employees during the winter months. It offered proof that such short term equipment use was available from a specific contractor without operators on the dates in issue.
In response to this claim, Carrier argued on the property that such work was not covered by the Scope of this Agreement, was routinely performed by other craft employees and contractors and that, even assuming the Scope clause was relevant, it was entitled to act as it did since this was an emergency situation. In its October 25, 1993 denial Carrier asserted that "the storm involved was of such a magnitude that the Governor of the State declared a state of emergency." Carrier also argues that as a furloughed employee Claimant is not available to perform this type of work, relying upon Public Law Board No. 3477, Award 6. Form 1 Award No. 32344
In rebuttal, the Organization took issue with Carrier's contention that the situation involved an emergency, furnishing a letter from the Pennsylvania Emergency Management Agency revealing that the Governor did not issue a Proclamation of Emergency during the period February 14-21, 1993, and that the heavy snowfall was considered routine. The Organization also notes that it was the only craft whose Agreement contains heavy snow removal and specifies the type of equipment needed for it therein.
A careful review of the record convinces the Board that this claim must be sustained. First, a majority of the Board Awards have held on this property that snow removal is work that comes under the Scope Rule of this Agreement, and thereby requires notice prior to contracting. Third Division Award 31752. The facts of the cases cited in Carrier's dissent to that award are clearly different from those presented in this record. While the Board found no express reservation of the disputed work in the Scope Rule in Third Division Award 30079, it relied upon the Organization's failure in that case to sustain its burden of proving that its employees performed the work by custom or practice, or even to specify the exact work in issue in denying the claim. Both Special Board of Adjustment No. 1016, Award 42 and Third Division Award 26482 rely upon records establishing the fact of a derailment causing an emergency situation.
In the instant case, although Carrier asserted that an emergency situation existed necessitating the contracting and excusing it from the prior notice requirements, such claim was effectively rebutted by the Organization on the property. On the record properly before us, we find that Carrier failed to meet its burden of proving its affirmative defense of an emergency situation, Third Division Award 31521, thereby removing its asserted excuse for non-compliance with the prior notice provisions. Under such circumstances, the Board finds that Carrier violated the Agreement by failing to give the Organization the requisite prior notice of this contracting transaction. We will sustain the claim as we do not find the named furloughed employee to be an improper Claimant herein.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.