Dana E. Eischen, Referee


              (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

                              (Port Terminal Railroad Association


              STATEMENT OF CLAIM: Claim of the System Committee of the Brother-

                            hood that:


(1) The Carrier violated the Agreement when it called and used other than Section Foreman F. Ross and his crew for overtime service on December 12, 1971 (Syst r
              (2) Section Foreman F. Ross, Trackmen Kary Thomas, G.

              Mejia, John Hickman and Jesse Adams each be allowed four and one-

' half (4-1/2) hours' pay at their respective time and one-half rate
              because of the violation referred to within Part (1) of this claim.


li
                            OPINION OF BOARD: Claimants herein, a foreman and four trackmen, constitute are la .

              Su ry assigned section gang ~n the employ of Carrier. These employes are assigned to work Mondays through Fridays with Saturdays and Sundays designated as rest days.


On Sunday, December 12, 1971 an engine derailed on the claimants' section territory near the Crown Petroleum Company. The claimants were at home, available and qualified to perform the work incident to rerailing. t Carrier did not call claimants but rather called and used another foreman and four trackmen to retail the engine and to replace a broken rail. This gang, under Foreman D. Walker, worked from 7:00 A.M.- to 11:30 A.M.

              In the foregoing circumstances, Petitioner asserts that Carrier violated the Agreement, Rules 14(L), 15(1) and 16(A), reproduced in pertinent part as follow


                      "RULE 14:


                      (L). WORK ON UNASSIGNED DAYS. Where work is required by the Association to be performed on a day which is not a part of any assignment, it may be performed by


      I

                  Award Number 20223 Page 2

                  Docket Number MW-20102


        "an available extra or unassigned employee who will otherwise not have forty (40) hours of work that week; in all other cases by the regular employee.


        RULE 15:


        (I). Employees notified or called to perform work be

        fore or after but not continuous with the regular work

        period will be allowed a minimum of two hours and forty

        minutes at time and one-half rate for two hours and

        forty minutes work or less. If held on duty in excess

        of two hours and forty minutes (2'40"), time and one

        half will be allowed on the minute basis.


        RULE 16:


        (A). Except as otherwise provided in this rule, em

        ployees who are required to work on their assigned rest

        days and the following holidays--namely,New Year's Day

        Washington's Birthday, Decoration Day, Fourth of July,

        Labor Day, Thanksgiving Day and Christmas (provided when

        any of the above holidays fall on Sunday, the day observed

        by the State, Nation or by Proclamation shall be con

        sidered the holiday) shall be compensated therefor at the

        rate of time and one-half with a minimum of two hours

        and forty minutes (2'40"), as per paragraph I of Rule 15."


Carrier premises its failure to call the regularly assigned employees essentially on the bare assertion that an emergency situation existed which necessitatad d was in the immediate area of the derailment at the time it occurred and readily available.

 Having asserted the affirmative defense of emergency, Carrier assumes the burden of establishing on the record that one did in fact exist. The record made on the property contains no probative evidence to support Carrier's assertion that there was an emergency involved herein. In the absence of such probative factual information we find that Carr for lack of proof; ipso facto, Walker's proximity to the derailment is of no evidentiary consequence.

 Carrier has proven no recognizable defense for its failure to call the regularly assigned employees. The claim for four and one-half hours pay at the respective overtime rate for each of the claimants is sustained.
                Award :;umber 20223 Page 3

                Docket Number Mv-20102


        rINDI:.7CS: The TIrd Division of L!:e Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing


That the Carrier and the Employes involved in this dispute are respectiveJ.y Carrier and Employe the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
          The Agreement was violated.


                    A W A E D


          Claim sustained.


                        NATIONAL PAILPCAD AD.Ttt~r~,^r r,na~n

                        B-- Ordc - "-,-rd y.r Oof iDil%1s1011


ATTEST:- ZI I e
 '-\2Ct1tiW $eCretary

 .DaLed at Chicago, Illinois, this 30th day of April 1974.