Carrier submits that under the facts present in this dispute, the Agreement between the parties was not violated when Carrier, in the exercise of reasonable discretion, did not call claimant to perform emergency repairs necessary to restore its main line to service. Claimant was not deprived of work as in no instance would he have been called to make the emergency repairs. The claim should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: About 10:30 P. M., September 5, 1962, the slip at the 25th Street Mole San Francisco, California, became damaged when one of the steel plates at the corner of the apron fell away and dropped into the Bay. Carrier called a Mechanical Department Welder at 11:00 P. M., who was on duty in the Motor Car Shop in Oakland, California, (10 highway miles from 25th Street Mole in San Francisco) to make repairs on the slip apron. Said welder assembled the tools and at 12:30 A. M., September 6, 1962, he began the repair work which he finished at 5:00 A. M.

The Organization claims Carrier violated the Agreement when, in lieu of calling and using the Claimant to perform the work in question, it called and used the Mechanical Department Welder who does not hold any seniority rights to said work, all in violation of Rule 1 (Scope), Rules 2, 3, 4 (Seniority) and Rule 33 (Overtime).

Rule 49 (Responding to Call) though admittedly not argued or mentioned in the record, was injected by the Labor representative upon discussion of this docket. The argument presented that this rule supports both the scope and seniority rules by providing no exceptions in the Agreement for a finding of "emergency" and further, would not be a defense for Carrier's failure to call the Claimant, who was available, under Rule 49.

Carrier contends the situation was an emergent one as Carrier's main line service between Oakland and San Francisco was interrupted and curtailed by the unforeseeable mishap, it being via a self-propelled car ferry, operating across San Francisco Bay; that without immediate repairs, delivery or forwarding of cars would be stopped, thereby making it impossible to fulfill integrated freight schedules upon the main line; that Claimant was not available and it would have been unrealistic to call him because of the excessive amount of time it would have taken him to drive a truck, 100 highway miles to the 25th Street Mole.

It is not disputed by the Carrier that the Claimant, who resides and headquarters in Sacramento (approximately 100 highway miles from 25th Street Mole) was the senior eligible employe for the work and further, that Carrier made no attempt to call him.

The question to be decided is whether an emergency existed at the time and was Claimant available for the assignment.

We are of the opinion that such an emergency did exist. The interruption of Carrier's main line service was an unforeseeable crisis of sufficient magnitude to be deemed an emergency in requiring immediate repair. Prior awards of this division have established the principle that under emergency situations, the Carrier may assign such employes as good judgment dictates. (See Awards 9394, 11241, 13626.)

"Although the Agreement does not expressly provide for deviations from the applicable Rules when emergencies are present, (as in the docket before us) we have held that under unavoidable exigencies requiring the speedy presence of an employe as an alternative to prolonged impairment of operations, that employe, (Claimant herein) even though enjoying priority of assignment under the Agreement,, who clearly cannot get to the assignment in the needed time, may be. regarded as not being truly `available' in realistic terms ....

"

(Parenthetical references ours.)

That the Agreement was not violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD.

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary