Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the Carrier assigned outside forces (Ronnie Wall, Inc.) to perform Maintenance of Way work (repair a culvert) at Mile Post 37.75 in the vicinity of Kildare, Texas on the Dallas Subdivision beginning April 13 through May 7, 1993 (Carrier's File 930600 MPR).

2. The Carrier also violated Article IV of the May 17, 1968 National Agreement when it failed to furnish the General Chairman with a proper advance written notice of its intention to contract out said work.

3. As a consequence of the violations referred to in Parts (1) and/or (2) above, Messrs. C. C. Mudford, D. L. Thomas, M. L. Glasscock, J. D. Daniel, K. A. Meriwether and M. L. Hayhurst shall each be allowed pay at their respective rates for an equal proportion-

ate share of the one thousand on hundred eleven and onehalf (1111.5) hours expended by the outside forces in the performance of the work in question.

Without prior notice to the Organization, the Carrier utilized a contractor for culvert repair work. This claim followed.

For reasons discussed in Awards 1 and 2 of this Board, the Carrier's exclusivity arguments are rejected.

The Carrier defends, in part, on the ground that the contracting out was necessitated by emergency conditions. According to the Carrier's October 26, 1993 letter:

... [T]his work was done in an emergency situation as a head wall had slipped off which damaged two culverts. Not only was the Railroad running on a 10 m.p.h. slow order, but most importantly, a highway was blocked off due to being underwater. In addition, water was backed up in a farmer's pasture which caused him to have to evacuate his cows.

PLB 6218, Award 5

C. C. Mudford, et al.

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tute an emergency is not persuasive. The conditions constituting the emergency existed beyond train op-

("This Board has held that in an emergency Carrier may take whatever action it deems appropriate to cope with its problems; see Third Division Awards 13316, 12777, 15597 and many similar holdings."). See also, Third Division Award 35529 where it was stated:

Sixth, with respect to emergencies, ... in emergency situations the Carrier has latitude to use its discretion in the assignment of forces." Third Division Award 32420 and Awards cited therein. However, when the Carrier claims the existence of an emergency, it "... bears the burden to demonstrate the existence of an emergency so as to allow it to avoid the requirements of the Agreement concerning the use of employees." Third Division Award 32419. That burden is for the Carrier to demonstrate the existence of "... an unforeseen combination of circumstances that calls far immediate action." ...

where immediacy of action is required ... advance notice is not practicable.").

Edwin H. Berm

Neutral Member

2 - ct

Carrier a er

Third Division Award 32862 does not require a different result. There, "(t)his record only shows that track stabilization work was necessary due to water seepage." Here, there was flooding blocking a highway.