Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43586 Docket No. MW-42434 19-3-NRAB-00003-180473 NRAB-00003-140037

The Third Division consisted of the regular members and in addition Referee Jacalyn J. Zimmerman when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company (former Chicago

and North Western Transportation Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned outside forces (Snelten) to perform Maintenance of Way Track Department work (operate trucks to haul materials) to Shermer Road near Glenwood and Northbrook, Illinois on the Milwaukee Subdivision on July 6, 7 and 8, 2012 (System File J-1201C364/1576973 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 and failed to make a good-faith effort to reduce the incidence of contracting out scope covered work and increase the us of its Maintenance of Way forces as Required by Rule 1 and Appendix '15'.

(3)As a consequence of the violations referred to in Parts (1) and/or

(2) above, Claimant S. Wyse shall be compensated '*** for all the accumulated hours of time that the contractor's employees spent performing maintenance of way work, at the applicable rate of pay.'" "

NRAB-00003-140037

FINDINGS:

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.

This dispute centers on the Carrier's decision to assign outside forces, beginning on July 6 and continuing through July 8, 2012, to operate various truck(s) to transport material in connection with a derailment that occurred on July 4, 2012 over Shermer Road on the Milwaukee Subdivision. The Organization's claim alleges that the Carrier violated the parties' Agreement because this work is reserved to Maintenance of Way employees, and the Carrier failed to serve notice of its intent to contract out the work.

The Carrier asserts the affirmative defense that the existence of an emergency gave it the right to utilize contractors to perform the work at issue. In particular, the Carrier states, the Agreement does not restrict its right to have work customarily performed by employees included within its scope performed by contract in emergencies that affect the movement of traffic when additional forces or equipment are required to clear up emergency conditions in the shortest time possible.

The record indicates that on July 4, 2012, the Carrier experienced a derailment of 32 loaded coal cars over a bridge on Shermer Road. The derailment destroyed an open deck bridge and tore out two turnouts and 20 track panels. The mainline was destroyed and traffic could not utilize these tracks.

TheCarrierexplainsthatthecontractorwasutilizedtohaulfillmaterialitowned to the location to fill the void left by the destroyed bridge. It also states that the scope of the derailment was such that the Carrier was not adequately equipped to handle the situation so that the track could be returned to service as quickly as possible.

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As noted in Third Division Awards 31676 and 41169, cited by the Carrier, the Board has recognized that a derailment is the sort of event for which, by definition, a carrier cannot plan in advance. Especially where, as here, the derailment damaged track and interfered with the Carrier's ability to service its customers, an emergency did exist which justified the Carrier's decision to forego notice and deploy contractor forcestoremedy thesituationasquicklyaspossible. TheCarrier'sactiondidnotviolate the Agreement. The claim will be denied.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 27th day of March 2019.