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.
The Organization alleges that the Carrier failed to provide proper advance notice of its intent to bring in an outside contractor for the routine removal of snow at five control points at Denison, Iowa, as well as in the Denison parking lot. This work was undisputedly performed on two separate dates: February 23 and March 8, 1999. The Organization maintains that the work was Scope protected and belonged to employees who were in furloughed status and should have been called and properly compensated to perform the work.
The Carrier maintains that there has been no Agreement violation. It argues that the Scope Rule provides the Carrier the right to perform work under the conditions at bar. Additionally, notification was not required due to the instant facts. Those facts included the emergency nature of the snow removal, the lack of equipment at the points required, and the fact that the Claimants lacked the skills to utilize the equipment. The Carrier maintains that while rental equipment was available more than 100 miles away, it would have to be rented for 30 days for the required one day of use.
Our review finds that the work of maintaining the Carrier's right-of-way belongs to BMWE-represented employees. Such work includes routine snow removal. The Scope Rule and notification state that:
Central to this dispute is the issue of the emergency nature of the snow removal. The Organization challenged the Carrier's affirmative defense of an emergency. The Organization asserts that this was not an emergency. The Organization states that trains continued to operate, the railroad was not shut down and the work did not continue around the clock. It further argues that there is no evidence provided by the Carrier that it lacked skills, available equipment or time to perform the snow removal. As this was essentially routine each winter, the Carrier had an obligation to meet with the General Chairman to work out mechanisms to afford this work to BMWE-represented employees, rather than to those foreign to the Agreement.
It is essential for the Carrier in this instance to prove its affirmative defense of an emergency. Without an emergency and without substance to its assertions, they remain only assertions. The Carrier's statements that, "Mother Nature covered the earth with snow and with the operation of the Carrier being suspended, an emergency condition existed," or "Management took only the steps needed to safely return the Carrier's operation to normal," do not provide probative evidence.
The only evidence of record in this instant case provided by the Carrier is a statement off the property by the Manager Track Maintenance (MTM). In full and without corrections it reads:
The Carrier argues that it has Award support in similar cases, but those cases are not similar as in each, the proof of a significant snow emergency was clear and unrefuted (Third Division Awards 29999, 30000; Public Law Board No. 2960, Award 163). If there were a major snow emergency proven in this record that was significant, unforeseen and a situation requiring emergency actions, it would be supported by the cited Awards. However, the Carrier failed to prove an emergency. We find no proof that this was anything other than routine snow removal for this area of the railroad that should have been predicted. The Organization maintained throughout this dispute that it was nothing more than "simple and basic equipment to perform the snow removal work," available locally, and with no evidence in the above statement that the MTM "tried to rent/lease equipment locally on an as needed basis." The Organization argues throughout this claim that:
The Board cannot conclude from the Carrier's evidence that this was a snow emergency that could not have been considered what the Organization called it; "simple and routine snow removal work performed by a contractor." The Carrier failed in its affirmative defense. The Board finds no evidence in this record that the parties have ever consulted over this issue on this property by prior notification.
Accordingly, the issues left to be resolved are twofold. The first is over the ineligibility of Claimant Reineke. The Board finds that he is eligible unless he waived his rights to pre-existing claims when he resigned. Secondly, there is no Form I Award No. 36854
proof in this record that the contractor did not use three employees, but only that: "There was 3 different machines used to do this work but only one man was operating these machines at any given time, because I only had one flagman to cover the work being done." After full consideration of the hours worked, the claim will be sustained as presented for the two 5'/2 hour days, of 11 hours total.
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.