"Claim of the Committee of the Union that:

1. That the Grand Trunk Western Railroad Company/CN violated the

terms and conditions of the current Agreement on November 29,

1996 when Carman LeRoy Sexton was not properly compensated

for the Holiday, the Friday after Thanksgiving. Carman Sexton's

position was canceled for the holiday, then his position was filled by

another employe who worked the complete shift. Carman Sexton

was not given the opportunity to work his regular assignment.

2. That accordingly, the Grand Trunk Western Railroad

Company/CN now be ordered to provide the following relief: That

Carman LeRoy Sexton be compensated for an additional eight (8)

hours pay at the rate of time and one half due to the fact that his

assignment worked eight (8) hours on the holiday and he was [not]

called for same."

This Division of the Adjustment Board has jurisdiction over the dispute involved

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

Claimant, a Freight Car Repairer/Freight Car Inspector assigned to the Car

Department at Flint, Michigan, worked a regular position from 4:00 P.M. to Midnight, Monday through Friday on the Flint Repair Track at the time this dispute arose. On November 25, 1996, the District Mechanical Supervisor issued a bulletin advising Carmen personnel at that location that all repair work and certain Train Yard positions in the department would be suspended for Thanksgiving Day and the following Friday, November 29, both holidays. Five Carmen were scheduled to work their normal assignments on Thanksgiving, and four were designated to work the next day. The Claimant was not assigned to work either day. His normal assignment on Friday would have been as a Freight Car Inspector in the Train Yard.

At approximately 1:30 P.M. on November 29, 1996, District Mechanical

Supervisor R. F. Miller called Carman R. J. Suchy from the Overtime Board to fill the Claimant's position on the second shift as a Yard Inspector as a result of a derailment at the location.

This claim, submitted on January 27,1997 by the Organization on the Claimant's

behalf, contends that the Carrier's failure to utilize the Claimant at holiday premium rates in lieu of Carman Suchy violated Rules 3 and 5 of the Agreement.

According to the Organization, the Parties' longstanding practice has been that

whenever work develops on a position that has been annulled because of low holiday volume, and a need thereafter arises for manpower, the employee who normally works the position on which the work is required is called for the assignment.

The Carrier does not dispute the Claimant's general right to work his own

of advance notice, but if fewer, it calls the next senior available man because the positions are all fungible. Calling in seniority order, it maintains, is the safest way of avoiding quarrels and complaints.

Our starting point is the Organization's argument on an important operative fact whether a true emergency was presented on November 29, 1996. The Organization argues that there is no evidence to support the Carrier's claim. There is some merit in the contention. The sole documentation of emergent conditions in this record appears to be the Carrier's early and persistent reliance on a "mainline derailment" necessitating additional manpower. On the other hand, the Organization made no showing either that such an incident did not occur, or if it did, that it did not constitute an emergency. As the moving party, it is the Organization's burden to produce persuasive proof on the point, and in its absence, the Carrier's representations on this fact issue must be credited.

That determination puts us squarely at the basic question of what the Rules dictate concerning who gets called on this property when an unexpected need arises for additional Carmen on a holiday after positions have been blanked. The Organization yokes its argument to Rule 3 and Rule 5 - Completion of Shifts. That reliance appears to the Board unavailing, as the sections of Rule 3 (a) cited merely establish the rate of pay for holiday work; (b) Section 1 of the August 19, 1960 National Agreement appearing in that Rule, while referencing "regularly assigned employees" is similarly a provision addressing rates of pay; and Rule 5, while referring to "employees assigned to work on holidays," is a rest provision and does not answer the question of who should be assigned to holiday work.

The Carrier's central argument is that the National Agreement itself makes no express provision for the circumstances presented here. Instead, the National Holiday Pay Agreement deals with the question of who stands for holiday work, leaving the issue to each individual property:

"(d) Except as provided in this Section 5, existing rules and practices thereunder governing whether an employee works on a holiday and the payment for work performed on a holiday are not changed hereby."

The Carrier further contends that in the absence of an explicit Rule, its past practice of assigning such work to the senior regular employee, i. e., employees on the

Overtime Board in seniority order, governs. The Organization denies the existence of any such practice and points to the Carrier's "Rules Governing the Overtime Boards" as proof of a contrary controlling practice.

Based upon our reading of the Overtime Board guidelines, it is clear that they are silent on holiday work and shed no light on the historic practice of assigning it. Accordingly, we are unable to agree that they provide any basis for concluding anything in either direction on this key element of the claim.

On balance, the Board appears to be faced with an unresolved conflict of fact on a crucial aspect of the dispute. Because we cannot with any certainty determine what existing practices the parties have established for dealing with short notice holiday callouts, we are unable to make a judgment as to whether the Agreement was violated and, by the rules of the Board, must dismiss the claim.

AWARD