(1) The Agreement was violated when the Carrier assigned outside forces (Ed Garrow & Son) to perform Maintenance of Way work (operate excavator) in connection with bank stabilization in the vicinity of Mile Post A105, Ticonderoga, New York on the

25, 26, 27, 28, 29, October 2 and 3, 2006. (Carrier's File 8-00537 DHR).

(2) The Agreement was further violated when the Carrier failed to provide an advance notice of its intent to contract out the aforesaid work or make a good-faith effort to reduce the incidence of subcontracting and increase the use of Maintenance of Way farces as required by Rule 1 and Appendix H.

(3) As a consequence of the violations referred to in Parts (I) and/or (2) above, Claimant R. Lindsay shall now be compensated for one hundred twenty-eight (128) hours at his respective straight time rate of pay and for thirty-two (32) hours at his respective time and one-half rate of pay."

Form I Page 2

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.

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

The claim, dated November 2, 2006, was timely handled in the usual manner on the property up to and including the highest designated officer of the Carrier.

Between September 11 and October 3, 2006, the Carrier contracted with an outside contractor to operate an excavator in order to stabilize an embankment at or near Mile Post AI05 on the Canadian Main Line near Ticonderoga, New York. The Organization asserts violations of Rule I (Preamble) Rule 3 (Vacancies and New Positions) Rule 4 (Seniority) Rule 11 (Overtime) Rule 20 (System Equipment Operators) Rule 28 (Rates of Pay) and Appendix H.

According to the Organization, the claimed work is within the scope and coverage of Rule 1.1 because it is "work generally recognized as Maintenance of Way work, such as, inspection, construction, repair and maintenance of . . . other structures, tracks . . . and roadbed" that is customarily, historically and traditionally performed by BMWE-represented employees. The Claimant, a qualified System Equipment Operator, was available to perform the work in question.

The Board finds that the Organization's unrebutted assertion is a fact of record. Crediting this unrebutted assertion is consistent with decisional authority set

in Third Division Award 36852 wherein the Board held:

Because the claimed work is scope-covered, compliance with the notice and conference requirements prescribed in Rule 1 is required for the contracting transaction. Notice was not issued by the Carrier because, it asserts, this was an "emergency" situation, which exempts it from the notice requirement.

Third Division Award 24440 defines "emergency" as the "sudden, unforeseeable, and uncontrollable nature of the event that interrupts operations and brings them to an immediate halt." Rule 1.3 states that "`[e]mergeneies applies to fires, floods, heavy snow and like circumstances."

There is no evidence in this record establishing "like circumstances" for an "emergency." Outside forces, consisting of one operator, performed excavation

primarily during regular work hours without any halt, disruption or even delay to

insufficient evidence that the Carrier made any effort to use the Claimant in lieu of outside forces as a means to reduce the incidence of contracting out.

Placing these finding within the context of the definition, the Board concludes there was no emergency. Because there was no emergency, the Carrier's decision not to issue advance notice to the Organization that the scope-covered work in question would be contracted out violates the parties' Agreement.

In view of the controlling Rules violations, the Board sustains the claim and, without a challenge by the Carrier, the hours claimed on each claim date are presumed accurate and will be granted as remedial relief.

The Board did not consider the Carrier's new arguments - flooding, mixed practice, or past practice - in rendering its findings and conclusions.

ORDER