"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned outside forces (Rossi Construction) to perform Maintenance of Way and Structures Department work (snow removal) at the Proviso Yards on February 25 and 26, 2007 (System File S 0701C-35811476266 CNW).

(2) The Agreement was further violated when the Carrier failed to furnish the General Chairman with an advance notice of its intent to contract out the aforesaid work or make a good-faith attempt to reach an understanding concerning such contracting as required by Rule 1(b).

(3) As a consequence of the violations referred to in Parts (1) and/or (2) above, Claimants S. Duda, J. Guerrero, J. Guzman, C. Rapier, O. Juarez, A. Ayala, S. Ramirez and J. Rodriguez shall now `*** each be compensated at their applicable time and one half rate of pay an equal and proportionate share of the one hundred twenty nine (129) hours rendered by the Contractor employees on February 25, and 26, 2007."'

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

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.

Pies to said dispute were given due notice of hearing thereon.

This is another claim filed by the Organization asserting violation of the Agreement by the Carrier for its use of an outside contractor at Proviso Yards for snow removal in February 2007. The dates involved in this claim are February 25 and 26, 2007.

In Third Division Award 40079, the Board found that an emergency existed as a result of a nine inch snowfall on February 13, 2007 which therefore allowed the Carrier ". . . latitude to assign work to strangers to the Agreement." In Third Division Award 40080 the Board found that the Carrier had not carried its burden to show that the emergency continued two and three days after the major snow event of February 13, 2007.

According to Manager Track Maintenance J. Goben for the dates in dispute in this case:

"During snow operations gangs were working 12 on 12 off. Contractors were called to let men receive rest. All laid off employees were called back to work. Mr. Duda worked 12 hours on the 25th and had 8 hours class and 9 hours OT on the 26th, Mr. Ayala worked 16 hours OT on the 25th and 12 hours OT on the 26th, J. Guerrero, took off work for personal business on the 25th and worked 8 hours straight on the 26th, J. Guzman worked 16 hours OT on the 25th, S. Ramires worked 12 hours OT on the 25th and 8 hours plus 9 hours OT on the 26th, O. Juarez worked 16 hours

In its letter of June 5s 2007, the Carrier asserts:

". . . Here the circumstances facing the Carrier fell precisely wig the definition of `emergency' set forth above. The Carrier needed to remove the snow to clear areas to keep Carrier services in this area running without delay, so a contractor was utilized to assist in the removal of the accumulation of snowfall."

The Carrier thus claims an emergency also existed on February 25 and 26,

In Third Division Award 40079, the Board discussed the impact of

"Third Division Award 20527 sets forth the standard for an `emergency:'

We have heretofore defined an emergency as `an unforeseen combination of circumstances which calls for immediate action' (Award 10965) . . . . [I]t is well established that the Carrier, in an emergency, has broader latitude in assigning work than under normal circumstances; in an emergency Carrier may assign such employees as its judgment indicates are required and it is not compelled to follow normal Agreement procedures."

In this matter, we also take notice of the historical weather data from the same internet source utilized by the Carrier in Third Division Award 40079 and as the Board found in Third Division Award 40080. That source shows that 2.3 inches of snow fell on February 25 and an additional 0.4 inches of snow fell on February 26, 2007. We cannot find that an approximate three inches of snow over a two day period constitutes an emergency.

As discussed in Third Division Award 40080, Rule I specifies that advance notice of the contracting transaction "except in `emergency time requirements' cases" must be given by the Carrier for scope covered work. That was not done. The claim therefore has merit.

The fact that the Claimants worked on the days in dispute does not deprive

them of a remedy. The Claimants lost work opportunities due to the Carrier's violation of the Agreement. See Third Division Award 32862 supra:

"The record shows that Claimants worked at the site at the time the contractor's forces were present. The Carrier argues that granting relief to Claimants who were employed at the site is unfair. That argument is not persuasive so as to change the result. The remedy in this case seeks to restore lost work opportunities. It may well be that Claimants could have performed the contracted work (or the work they actually performed) on an overtime basis or could have resulted in more covered employees being called in to work on the project. Indeed, had the Carrier given notice, those questions could have been the subject for discussion in conference between the parties. 4n balance, having failed to give the required notice, the Carrier cannot now argue that the result is unfair."

The Claimants shall, therefore, be compensated for their proportionate share of the number of hours worked by the contractor's forces on February 25 and 26, 2007 consistent with the provisions of the Agreement. However, as Manager Track Maintenance Goben points out, certain Claimants did not work on the two dates in question (Guerrero took off work on February 25 for personal business and Rodriguez was not yet working at Proviso). With respect to Guerrero and Rodriguez, we will leave the question of entitlement to and computation of the reduction of their proportionate share of the remedy to the parties in the first instance.

AWARD