This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimants hold seniority as Rank No. 3 Machine Operators in the Track Subdepartment on the LCL Subdivision. At the time this issue arose, both Claimants were furloughed.
During the first week in March 1997, there was flooding on several of the Carrier's Subdivisions in both Tennessee and Kentucky. Pertinent to this dispute, a private contractor, Midway Construction, was used to remove rock, mud and trees from portions of track at the Pendleton, Kentucky.
On April 15, 1997, the Organization submitted a claim alleging the Carrier violated Rules 1, 2, 3, 4, 5, 6, 9 and 30, the May 17, 1968 National Agreement and the December 11, 1981 Letter of Agreement. Specifically, the Organization contended that the work that Midway performed was work within the Scope of the Agreement and, therefore, accrued to the Claimants. The Organization further asserted that the Carrier failed to provide any advance notice to the General Chairman in connection with the March 7, 1997 assignment of Midway Construction to perform work at Mile Posts T32.6 and T-33.8 to the "exclusion" of the furloughed Claimants.
The Carrier denied the claim, maintaining that because of the flooding an "emergency" existed requiring "immediate attention." According to the Carrier, no fewer than nine trains were held and "operations were halted" until the mainline was restored. The Carrier attached copies of reports from its Operations Center for March 7, 1997, the date the work in dispute was performed.
In its July 2, 1997 response to the Carrier's denial, the Organization contended that:
As noted above, the Organization disputed the Carrier's emergency defense and maintained that the furloughed Claimants should have been recalled to perform the work. In support of that allegation, the Organization submitted a photograph of the "work location" in dispute, in addition to signed statements from employees each of whom alleged that there was "absolutely no mud, rocks or trees that needed to be removed to restore train traffic at the location of the violation."
In its final response, the Carrier asserted that the statements and photographs enclosed in the Organization's correspondence were of "no probative value," and there was "no correlation" between the pictures and the location where the work at issue had been performed. The Carrier further noted that there was no "ownership identification" of the machinery shown in the photo, nor was there confirmation that the photo was taken on the date or at the location specified in the claim.
A review of the record evidence supports the Carrier's position. Although the Organization asserts that there was no "emergency" damage to the area in which Midway Construction performed work, the undated photograph and employee statements are unsubstantiated and, therefore, of no probative value. During handling on the property, the Carrier questioned the veracity of both the photo and the statements, Le, dates and exact locations. Nevertheless, the Organization failed to produce said documentation. Form I Award No. 35413
Conversely, the reports that the Carrier provided from the Operations Center were both date and location specific. Those reports, in conjunction with the evidence presented on this record, indicate that the severe flooding on the LCL Subdivision created true emergency conditions. Clearly, the work that Midway Construction performed was not planned in advance, nor was there enough time to recall the furloughed Claimants in a timely manner. Therefore, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.