(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, on August 6, 1973, Track Laborer Donnie Jones (Section Gang 203) was called and used for overtime service from 1:15 a.m. to 7:30 a.m. instead of calling and using Track Laborer A. L. Pense who also is assigned to Section Gang 203 and who is senior to Track Laborer Donnie Jones (System File B-410/11-7591).

 (2) As a consequence of the aforesaid violation, Track Laborer A. L. Pense now be allowed 6-1/4 hours of pay at his time and one-half rate.

 OPINION OF BOARD: In this case there is no factual dispute. Claimant
 is a member of Section Gang 203 headquartered at Fort Smith, Arkansas, with a seniority date of July 9, 1937.

 On the night of August 5-6, 1973 Train No, 730 derailed at the south end of the tunnel at Winslow, Arkansas, a location not within the territory of Gang 203. Carrier's Roadmaster called out employes to assist in rerailing the train and one called was Donnie Jones, a member of Gang 203 who has seniority from March 13, 1970. Mr. Jones resides some fifteen (15) miles from the derailment site and four (4) miles from the Frog Repairer whom he was called out to assist. Claimant A. L. Pense resides some fortyone (41) miles from the derailment site and was not called by Carrier to assist in the rerailing. Jones worked from 1:15 a.m. to 7:30 a.m. on August 6 1973, a total of six and one-quarter hours. By letter dated August 26, 1973 the instant claim was filed by the organization on behalf of A. L. Pense alleging violation of Article 2, Rules 2 and 8 of the controlling Agreement and seeking 64 hours of pay at the time and one-half rate. The claim was denied by Carrier on grounds that Claimant's seniority did not apply to non-Track Department work and because an emergency condition existed under which Ca The dispute was not resolved on the property and comes to our Division for resolution.

 It is clear from the record that Claimant does not have a claim to the work here involved per se because it was work outside his seniority sub-department and performed outside the territory of his assigned gang.


Rather, Claimant concedes that Carrier did not have to call a member of Gang 203 to do the work but, having done so, it was required by the Agreement to call Claimant who h that it called Jones solely because he was geographically closer to the derailment than was Claimant and thus more available to respond quickly to the emergency situation.

 The Organization argued for the first time before our Hoard that the situation involving the derailment was not an emergency and that Carrier thereby was precluded from asserting emergency latitude in making assignments. At no time on the pro acquiesced in calling the incident an emergency. It is too well established to require elaborate cit Hoard level come too late and cannot be considered. In these circumstances Carrier's characterization of an emergency situation stands effectively unrefhted. It is quite true that Carrier has the burden of proof on the issue of emergency and cannot meet same by a bare unsupported assertion. See Award 20223. But that earlier case involved a clear and unambiguous contractual reservation of the disputed work to the claimant therein as well as an absolute void of evidence substantiating Carrier's assertion of emergency. The instant case presents no clear-cut contract claim to the work and does contain unreflited evidence that the derailment blocked a tunnel on the main line. Moreover, as noted supra the Organization adopted the characterization of "emergency" on the property and did not protest same until reaching the Hoard level. In all of the circumstances of this particular case we are persuaded that Carrier has shown that an emergency was involved herein. Further, in light of the emergency conditions prevailing we cannot co called the nearest available, albeit junior, member of Gang 203 rather than Claimant, the senior but distant member of that gang. Accordingly we shall deny the claim.

        FINDII3S: The Third Division of the Adjustment Hoard, 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 respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and
                    Award Number 21012 Page 3

                    Docket Number b5I-20854


        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                          RATIONAL RAILROAD AWUSTA41iT HOARD

                          By Order of Third Division


ATTEST:.
      Executive Secretary


Dated at Chicago, Illinois, this 31st day of March 1976.