_ NATIONAL RAILROAD ADJUSTMENT BOARD'
THIRD DIVISION Locket Number MW-25447
Eugene T. Herbert, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
(Southern Region)
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 August 11, 1982 instead of calling and using
Trackman P. L. Meadows who was senior, available and willing to perform that
service (System File C-TC-1401-MG-3634).
(2) Because of the aforesaid violation, Trackman P. L. Meadows shall
be allowed eight (8) hours of pay at his time and one-half rate and eight (8)
hours of pay at his double time rate.
OPINION OF BOARD: On August 11, 1982, a derailment occurred in the yard at
Hinton, West Virginia. Force 1124, which was responsible
for the normal
maintenance of
the trackage at the derailment site, was called
out by the Foreman in an effort to return the track to service. The Foreman
then determined that additional personnel were required for this purpose and
proceeded to call and utilize several employes from Force 1106 junior to Claimant
who, himself, is a member of that Force.
Rule 29 reads as follows:
"When necessary to work employees continuous with
and in advance of the regular tour, not continuous with
the regular tour, and on rest days and holidays when the
employee is not regularly assigned to work on holidays,
senior employees on the particular gang or force, if
qualified, will be given preference if they are available.
Carrier's defense rests on Understanding 1 pertaining to Rule 29, which
states:
"This rule is not to apply when some emergency condition makes it necessary to get an employe
delay and without respect to whether the senior employee
is being gotten. In emergencies the most readily available employee will be called and used.'
Award Number 25449 Page 2
Docket Number NW-25447
While the Organization has the burden of proving a Rule violation,
once it does so the burden shifts to Carrier to provide evidence that the Rule
was not applicable under the circumstances of the particular case or that an
exception to the Rule was otherwise justified.
Here, there is no dispute that Claimant's seniority rights were infringed.
However, the Carrier asserts an emergency condition which, under the aforecited
Understanding 1, would permit it to call and use the most readily available
employe irrespective of seniority.
While the record shows the Organization to have denied the existence
of an emergency in only the most general sense, a determination as to whether
such a condition actually existed must depend on the evidence of probative
value submitted by Carrier. Carrier here asserts that 'a serious derailment'
occasioned its "urgent need to obtain assistance'. But mere assertion does not
constitute proof. No evidence was adduced on the property which would support
the necessity to "get an employee without delay and without respect to whether
the senior employee is being gotten". Indeed, the record indicates that Carrier's
Foreman took action seemingly
inconsistent with
the existence of a true emergency.
He stated that he telephoned Claimant but did not ask the Operator to break 3n
on the line when he found it was busy. Thereafter, the Foreman claims to have
driven to Claimant's residence in a futile search for him. These facts do not
support Carrier's
contention that
an emergency condition, such as contemplated
in Understanding 1, existed.
Accordingly the Board finds that Understanding 1 was not shown to be
applicable in this case. As there was
convincing evidence
that Claimant was
indeed available to work to clear the track, he was therefore entitled to be
given preference over junior employes in Force 1106 for that assignment. Such
efforts as were made to contact him do not, in this case, satisfy Carrier's
obligation to use reasonable efforts to determine the availability of a senior
employe.
As to compensation, there is no reason to disbelieve Carrier's statement
that employes on Force 1106 worked on the derailment for a total of twelve,
rather than sixteen overtime hours. Accordingly Claimant should be allowed
eight (8J hours of pay at his time and one-half rate and four (4J hours of pay
at his double time rate.
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 violated.
Award Number 25449 Page 3
Locket Number MW-15447
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
~` i
Nancy .I.ver - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of May 1985.