PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned junior trackmen to perform overtime service on March 8, 1982 instead of calling and using Trackman C. M. Chapman, Jr. who was senior, available and willing to perform that service (System File C-TC-1288/MG-3485).
(2) Because of the aforesaid violation, Trackman C. M. Chapman, Jr. shall be allowed six and one-half (6-1/2) hours of pay at his time and one half rate.
OPINION OF BOARD: At approximately 5:05 p. m. on March 8, 1982, five minutes
 after Claimant, Trackman C. M. Chapman, Jr., was released
 from service, a second derailment occurred at South Charleston, West Virginia.
 Two junior employes were called out to clear the second derailment. The Organization
 on March 24, 1982, filed a claim alleging numerous rules violations on the part
 of the Carrier in failing to call out the Claimant who was senior employe.
The issue in the instant case centers on whether Carrier was in contravention of Rule 29 which allows Carrier to use without respect to seniority any available employe when emergency conditions prevail. The Carrier and Organization dispute whether an emergency existed. Rule 29 in pertinent part states in reference to using the senior employe:


In support of Carrier action the Manager Engineering responded to the Organization's claim in a letter of April 29, 1982, stating that the junior employes were used "due to the emergency conditions. The Yard was tied up...". The General Chairman responded on June 23, 1982, stating in pertinent part that it was an "alleged emergency condition' and claimed that as soon as all of the employes left, Foreman Stephenson came by, decided to work on the derailment" and further that "if there was no emergency situation on the other alleged derailment mentioned, we do not see whereby there would have been an emergency situation in the second derailment". Carrier official responded that it "was considered an emergency by Carrier" and further that 'the Carrier is granted greater latitude in the assignment of employes during emergency situations". If the Carrier was in contravention of Rule 29 and no emergency existed, then failure to work Claimant was in violation of the Agreement. If an emergency existed then Carrier did not violate the Agreement.
                    Locket Number MW-25265


The National Railroad Adjustment Board has held repeatedly that the weight of the evidence for any claim is the responsibility of the moving party (Third Division Awards 19506, 24965). The Organization claims that the Claimant was available, that neither of the junior men "had worked that day" and most importantly that there was no emergency. The Carrier in taking the affirmative defense and claiming an emergency provides sufficient documenation for its position of this and other factors. That a second derailment occurred is not contested. Nor is it contested that it occurred moments after the Claimant signed off. Even further, it is not disputed that the Claimant immediately left the property and as such it would be patently meaningless to place a call to Claimant for immediate work. The Carrier also documents that it used the most available employes including Trackman Snyder, who had also worked that day with Claimant, and Trackman Fletcher who happened to be on Carrier property. There is no probative evidence that anyone was called by telephone to work the second derailment. From an evidentiary position, one of those employes began work at 5:30 p.m. No other evidence exists to document the immediacy of the response, but the immediacy of the response is asserted by the Carrier, substantiated by the record, and not disputed by the Organization.
In Award 10965 an emergency was defined as "an unforeseen combination of circumstances which calls for immediate action". Carrier not only asserted an emergency in that "the yard was tied up", but utilized immediate action in its assignment of personnel, who were on the property, without convincing contradiction. In addition, from the record it appears that Fletcher was on Carrier property and that the Claimant was not immediately available. This Board finds such argument persuasive with respect to Carrier action and holds that an emergency situation prevailed. As such, Carrier was not in contravention of the Agreement.
        FINDINGS: The Third Division of the 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 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
        That the Agreement was not violated.


                        A W A R D


        Claim denied.

                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: _
 'Nancy -J. r - Executive Secretary
      Dated at Chicago, Illinois, this 31st day of January 1985.