"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it called and assigned outside forces (Hulcher, Inc.) to perform Maintenance of Way and Structures Department work (track restoration and related repair work) at Mile Post .02 in the vicinity of Grand Junction, Colorado on August 18 and 19, 2008 (System File D-08-28Cl1512625).

(2) The Carrier violated the Agreement when it called and assigned outside forces (Hulcher, Inc.) to perform Maintenance of Way and Structures Department work (install switches and related work) at Mile Post.02 in the vicinity of Grand Junction, Colorado on August 20, 21 and 22, 2008 (System File D-0829C/1512918).

(3) The Agreement was further violated when the Carrier failed to furnish the General Chairman with an advance notice of its intent to contract the aforesaid work or make a good-faith effort to reduce the incidence of contracting out Scope covered work and increase the use of its Maintenance of Way forces as required by Rule 52 and the December 11, 1981 Letter of Understanding.

(4) As a consequence of the violations referred to in Parts (1) and/or (3) above, Claimants O. Ratliff, F. Ward, B. Murray, C. Dagnan, J. Jensen, J. Cordova, J. L. Cordova, M. Lara and T. Foley shall `. . . now be compensated an equal and proportionate share of all and any straight time, overtime, and double time hours, at their respective rates of pay, worked by outside contractor's forces in the performance of the claimed work commencing on August 18, 2008 and continuing through August 19, 2008.'

(S) As a consequence of the violations referred to in Parts (2) and/or (3) above, Claimants O. Ratliff, F. Ward, B. Murray, C. Dagnan, J. Jensen, J. Cordova, J. L. Cordova, M. Lara and T. Foley shall `. . . now be compensated an equal and proportionate share of all and any straight time, overtime hours, at their respective rates of pay, worked by outside contractor's forces in the performance of the claimed work commencing on August 20, 2008 and continuing through August 22, 2008. A total of thirty (30) hours."'

are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

19, 2008, and for installing switches and related work on August 20, 21 and 22, 2008, due to a derailment.

According to

contractor's forces to perform the disputed work because ". . . a broken rail caused the derailment which caused five (5) cars and a unit to derail . . . [which] caused substantial track structure damage in the area." Further, according to the Carrier in the same letter, ". . . Carrier records indicate that the Claimants remained fully compensated and worked all of their assigned hours and performed overtime services for the dates listed in the claim." In the Carrier's April 7, 2009, letter the Carrier also asserts "[i)f the Claimants listed wanted to perform the derailment repairs as you allege, then they should have availed themselves when calls were

(a) By agreement between the Company and the General Chairman, work customarily performed by employees covered under this Agreement may be let to contractors and be performed by contractors' forces . . . when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces.

(c) Nothing contained in this rule requires that notices be given, conferences be held or agreement reached with the General Chairman regarding the use of contractors or use of other than maintenance of way employees in the performance of work in emergencies such as wrecks, washouts, fires, earthquakes, landslides and similar disaster."

See also, Third Division Award 20527 (". . . it 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.").

Not all derailments can be considered "emergencies." Award 20527, supra, held: "[w]e have heretofore defined an emergency as `. . . an unforeseen combination of circumstances which calls for immediate action' (Award 10965)." And it has been found that conditions from a derailment which may start as emergencies permitting the Carrier's use of contractors can change as the repairs go on so that emergency circumstances no longer exist and the failure to thereafter use scope-covered employees becomes a violation of the Agreement. See Public Law Board No. 7096, Award 14 between the parties:

"The Carrier's obligations under Rule 52(a) are excused `. . . when emergency time requirements exist which present undertakings not contemplated by the Agreement and beyond the capacity of the Company's forces.' So the question here is whether the evidence shows that `. . . emergency time requirements exist[ed] . . .'?

In Third Division Award 38349, the parties faced the same issue involving the same contractor with an emergency asserted by the Carrier caused by another yard derailment. The Third Division sustained the claim and held:

the emergency ceased where the contractor's work forces began to fluctuate `thereby suggesting that the emergency

See also, Third Division Award 40077:

"The Organization is correct that there comes a point when an emergency ends. See e.g., Third Division Award 40080 where the Board found that a snow emergency ended by the second and third days after the major snow event and it was improper to use outside forces on those days."

Clearly, the Carrier met its burden to show that, at the outset, the conditions in this case constituted an "emergency" (". . . a broken rail caused the derailment which caused five (5) cars and a unit to derail . . . [which] caused substantial track structure damage in the area."). We recognize that the events involved in this case extended over a period of five days - August 18 and 19, 2008, for the track restoration and repair work and August 20 through 22, 2008 for installing switches and related work - which might cause a question concerning why the "emergency" lasted as long as it did? See Third Division Award 38142 (". . . any emergency

have lasted _l3 days by any reasonable standard."). However, there is nothing in this record to refute the Carrier's assertion that the "emergency" lasted as long as it did. When the Carrier showed that the incident started as an emergency, the burden shifted to the Organization to show that at some point during the period covered by the claims, the "emergency" ended. The Organization has not sufficiently, through facts, refuted the Carrier's showing that the emergency existed for the five days in dispute. The claims must therefore be denied.