The Third Division consisted of the regular members and in addition Referee Brian Clauss when award was rendered.
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.
A review of the record evidence reveals that a derailment occurred at MP 243.50 on April 8, 2005. Carrier forces, as well as nine employees of Jim Dobbas, Inc. were used to restore service to the main line, including installation of gauge rods during early morning hours. The Organization filed a claim for the contracting of the gauge rod installation.
The Organization maintains that the Carrier violated the Agreement when it did not provide the required notice of the Carrier's intent to contract out the gauge rod installation and instead called the contractor to perform the work. According to the Organization, the Carrier's "emergency" defense fails because the record does not contain any evidence that the derailment interrupted the Carrier's operations. Further, the installation of the gauge rods was not necessary to opening the main line.
The Carrier counters that the claim is defective because the Organization changed the initial claim from a violation of Rule 52 to a violation of Rule 59 and then back to a violation of Rule 52. The Carrier continues that, even if the merits Form 1 Award No. 40246
are considered, the claim must fail because there was an "emergency" situation requiring a response.
The Board carefully reviewed the record evidence. The Organization cites the definition of "emergency" from Third Division Award 24440 as the "sudden, unforeseeable, and uncontrollable nature of the event that interrupts operations and brings them to an immediate halt." The Carrier cites to the definition in Third Division Award 20527 as "an unforeseen combination of circumstances which calls for immediate action."
Regardless of whether the Organization's or the Carrier's definition of "emergency" is applied, there was an emergency in this matter because a derailment closed the main line. Given the emergency situation cause by the derailment, the Carrier was not required to provide 15 days' advance notice of its intent to contract the claimed work. Accordingly, the claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.