The instant dispute combined two separate claims challenging the Carrier's use of one contractor employee to perform snow removal work over eve consecutive days t its Sterling hard facility. The employee worked ten hours each of the first four days and six hours on the fifth day. It is undisputed that he operated a Caterpillar o. 0415 front end loader on the claim dates.
It is also undisputed that the Claimant is headquartered at Mound aran that the front end loader he normally operates stood idle at Mound Yard on the claim dates. Although the record establishes that Sterling Yard is some 20 miles north of Detroit, it does not explain where Mound hard is located in relation to either Detroit or Sterling Yard.
The Organization contended that snow removal work is reserved by the effective Scope Rule and that the Carrier also failed to properly provide the General Chairman with the requisite advance notice of its intent to contract the work in dispute. When the Carrier asserted that it had provided notice dated November 1, 199 to cover the 199 -1999 winter season, the Organization denied receiving i. The Carrier did provide a copy of the notice for the record.
Although the Carrier maintained tit had provided proper notice, it also contended that heavy sno emergency relieve it f any notice obligation. In addition, the Carrier provided ork records to support its contention that all f its employees either worked 1hours on the claim aces r declined the opportunity t
o. t is undisputed that the Claimant did work 1hourn each of the claim aces.
Form 1 ward a. 37276The Carrier also disputed that snow removal work is covered by the Scope Rule.
Several of the factors in dispute are readily resoled by ell-settled means rising from prior Awards between these same parties. Scope coverage of snow removal work has been recognized in the majority of the Awards that have addressed the issue. See Third Division Award 32344 and cases cited therein. That recognition has been subsequently followed. See, for example, Third Division Award 35835. Thus, the Carrier is required to provide notice of its intent to contract out snow removal work in accordance with the dictates of the effective Agreement.
Regarding service of notice, in the absence of an established practice or A greement language that eliminates the requirement, it is generally the burden of the party claiming to have sent something through the mail to prove that it as, in fact, mailed and/or received. The record does not establish that the Carrier s relieved of this requirement, nor does it contain acceptable proof f mailing or receipt. Thus, on this record, a must end that the Carrier's "blanket" notice as dot provided.
The remaining question, however, is whether emergency circumstances relieved the Carrier of copliance with the notice requirement. t is the pivotal issue. n this regard, it is clear that the parties' Agreement lists "heavy sn " ng the example conditions that constitute a ergencie. Moreover, the Agreement explicitly carves out an exception to the notice requirement i e event of such emergencies.
in evelointrcod on te property, t Carrier repeatedly referenced 24 inchs of blowing snow to support its contention that there was an emergency. The Organization never effectively refuted either the magnitude the character the snowfall. Moreover, the Organization never effectively refute the contention
that all of the Carrier's forces were contacted aid allowed to work lhurs per day to cope with the weather. The deployment of Carrier forces in this manner for five consecutive days is entirely consistent with the presence of extraordinary, or emergency, circumstances while trying, as the Carrier contends, to minimize the effects of fatigue and its resultant adverse impact on safety. Although the Organization, countered with the assertion that there could not a true emergency because the Carrier did not require its forces to work 24 hours around the clock, we note that the Agreement does not impose pub a continuous duty requirement to prove the fact of a qualifying emergency. its terms, the Agreement requires only proof of "heavy snow.."
Given the foregoing discussion, we find this record to sufficiently establish the existence of a heavy snot emergency. It follows, therefore, that the Carrier, did not violate the Agreement as claimed.,
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to te lai ants) not a made.