(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when Foreman George F. Bay, Novia G. Mead and Lee R. Bradshaw were not called and used to perform overtime service on their assi instead called and used Frog Welder C. C. Smith and junior Laborers R. C. Strong and E. L. Wheat for such service (System File A-9381/D-6895).

 (2) Messrs. Bay, Mead and Bradshaw each be allowed four hours' pay at their respective time and one-half rates.

 OPINION OF BOARD: Claimants, a Foreman, a Truck Driver-Laborer and a
 Trackman were all assigned to District Gang No. 130. On March 17, 1972 at approximately 10:30 P.M. a broken rail was reported on the track assigned to District Gang 130. Carrier called a Frog Welder and two junior Laborers to perform overtime service repairing the broken rail. Petitioner protested the calling of these three employes and contended that Claimants should h dispute.

 Carrier contended that the broken rail was in welded rail territory and assumed that the service further that the broken rail was in a main line and constituted an emergency. Carrier claimed that t that of District Gang No. 130 and more, and the two laborers whom he called to assist him resided about thirty miles from the location of the broken rail while the Claimant Foreman lived about fifty-nine miles away. Carrier argued that its actions were appropriate in view of all the circumstances and in its efforts to repair the broken rail promptly. Carrier cited anmerous prior Awards all of wh the absence of express prohibitions, Carrier has greater latitude in selecting employes than under n
Petitioner states that under the principle of seniority the Claimants herein are entitled to perform work arising on their assigned territory to the exclusion of others. Further Petitioner relies on Article 2 Rule 3 to support this




The Organization avers that the above Rule has been interpreted to provide seniority right to wo Further, it is argued that two of the Claimants lived within five and onehalf miles of the broken
Both parties to this dispute claim that their opponents have raised new issues and facts in their submissions. We shall deal only with those matters which the parties raised on the property in accordance with our long standing practices.

 In our judgement, Petitioner has made a prima facie case for Claimants, based on well established principles of seniority. Carrier can only defeat this position by its contention that in an emergency situation it has greater latitude in calling employes for repair work. An examination of the record of the handling on the property reveals that Carrier never established that an emergency existed. The only statements made by Carrier were that there were emergency repairs which should be made with the least possible delay. We have no information whatever beyond the fact of a broken rail significance. Carrier had the burden of proof with respect to its defense; a broken rail per se does 13738 we said:

Similarly in the instant case we find no justification in fact for Carrier's argument of emergency. Seniority rights are of prime importance in the collective barg at Carrier's peril. The claim must be sustained.






That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and



        Claim sustained.


                          NATIONAL RAILROAD ADJUST!,= BOARD

                          By Order of Third Division


ATTEST:~, ~/~./
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of June 1974,