At approximately 3:30 A.M. on June 23,1993 the Carrier's Fort Wayne main line was taken out of service because of debris on the track. Carrier called Maintenance Forman lacona, who lived ten miles from the work site at mile post 17.5, rather than the Claimant who lived 60 miles from the site, despite the fact that the Claimant was more senior.
The parties do not disagree that Rule 17 requires that overtime work of the type customarily performed will be offered on a preferential basis to the most qualified, available and senior employee. They disagree however whether an emergency situation existed that excused the Carrier's failure to do so. The Organization contends that the Carrier failed to carry its burden of proof in this regard. Alternatively, it argues that assuming arguendo that an emergency existed, the Carrier violated the agreement nonetheless when it failed to make any effort to contact the Claimant.
We disagree on both counts. There is no dispute that the record contains dispatcher sheets that show that the track in question was placed out of service while the debris was removed and the Organization did not rebut the Carrier's assertion that the Fort Wayne Line was a ". . . critical link between the Philadelphia and Chicago terminals." For this reason the Awards cited by the Organization are distinguishable because in those instances the record was devoid of any probative evidence. Rather, the Organization argues that the Carrier cannot prove that there was an emergency absent evidence that trains were in fact delayed. Secondarily, it argues that as we face the new millennium distance is no basis for assigning overtime service to junior employees. Again, this Board disagrees. First, we do not think it would be prudent to require that before an emergency situation can be found actual delays to service are required. Second, although the Organization is correct that today one can arrive at distant locations faster than once imagined that does not, in and of itself, mean that time is not of the essence.
Therefore we find that an emergency existed such that the Carrier's assignment of the overtime work to a junior employee was proper. The remaining argument raised by the Organization is that the Carrier violated the Agreement by failing to make an effort to contact the Claimant. We, however, believe that our determination regarding the existence of the emergency disposes of this argument as well. Simply put, since an emergency existed that justified assigning the work to the junior employee, we see no value in holding that the Carrier was required nonetheless by failing to contact the Claimant. Form 1 Page 3
LABOR MEMBER'S DISSENT
TO
AWARD 33911
DOCKET MW-32307
(Referee Perkovich)
The above-referenced award was based on unsupported assertions and therefore a dissent is required. This case involved the Carrier's decision to assign a junior employe to perform overtime work based on his proximity to the starting point and an alleged emergency. The Majority held that an emergency situation existed and the Carrier was free to assign the overtime to the junior employe without regarding the Claimant's superior seniority. The Carrier claimed that since there was debris on the Carrier's main line, such automatically created an emergency. During the handling of this dispute on the property, the Organization pointed out that although there may have been debris on the track, such in and of itself did not create an emergency situation. The Organization further challenged the Carrier's allegation of emergency by requesting that it produce evidence of trains being delayed. The Majority erred when it stated:
The afore-cited proclamation of the Majority flies in the face of the long-established definition of an emergency that has been universally accepted by the Board. This Board has consisten
Clearly, in this case the mere existence of debris on the track was insufficient to prove an emergency. The Majority in this case should have followed the precedent already established on this subject and sustained the claim. Instead, it accepted the Carrier's unproven assertion of emergency, much to the detriment of the Claimants.
Under date of February 22, 2000, Referee Eischen rendered an award which was nearly identical to the facts in this docket, wherein the Board held:
Ro . Robinsc
Labor Member