Foreman W. Miller, Vehicle Operator M. Carney and Vehicle Operator C. Berry (Claimants) are headquartered at Pittsburgh, Pennsylvania. The Claimants each hold seniority on the Youngstown Seniority District.
On December 8,1993, a broken rail occurred on the main line at M.P. 36.8 on the Youngstown Seniority District. The Carrier assigned the work to Foreman Track Patrol M. Drabison, Electric Welder M. Rawlings, and Welder R. Granis, each of whom lived six to eight miles from the work site, rather than to Claimants Carney, Berry and Miller who resided 25, 65 and 75 miles, respectively, from the work site. Mr. Drabison holds seniority on the Youngstown Seniority District, however, at the time this dispute arose he was assigned to the Niles Subdivision. Messrs. Rawlings and Granis hold seniority on the Pittsburgh Seniority District. Each was paid six hours at their respective overtime rates for the work at issue here.
On January 10,1994, the Vice Chairman submitted a claim on behalf of Claimant Miller, who is senior to Drabison, alleging that he should have been called for the December 8 overtime. The Vice Chairman also submitted claims on behalf of Claimants Berry and Carney who have seniority on the Youngstown District where the broken rail occurred, and were senior to Rawlings and Granis, who have seniority on the Pittsburgh Seniority District. The claim sought payment of six hours' pay at the overtime rate for the alleged violation of Appendix °°C," and Rules 4 and 17.
Appendix C, referenced in Rule 4, contains various maps which outline the separate geographical seniority districts. Agreement Rules 4 and 17 read, in pertinent part:
The Carrier denied the claim, contending that the broken rail on the main line causing a delay in trains was an "emergency condition" that required "the fastest possible response" and thus justified using the "closest available employees." The Carrier further contended that Claimant Carney was on vacation on the claim date, and was therefore, unavailable for the work in dispute. Finally, "without precedent or prejudice to the position of either party" the Carrier allowed Claimant Berry six hours at his then applicable straight time rate.
The Organization made out a prima facie case that the Carrier violated the Claimants' Rule 17 overtime preference rights by mis-assignment across Rule 4 seniority district boundaries. See Awards 41 and 81 of Special Board of Adjustment Form 1 Page 4
No. 1016 and Third Division Awards 24662, 29381 and 30181 involving these same parties. The Carrier's burden of persuasion on its affirmative defense of "emergency conditions" is not met by mere assertion and the record facts do not support a conclusion that this was a true "emergency." See Third Division Awards 14321, 20223, 20310, 23853 and 29742. Finally, the Organization effectively refuted the contentions that Claimant Carney was unavailable or that damages at the overtime rate were inappropriate to remedy the proven violation of Rule 17. See Third Division Awards 30181 and 30987 for on-property precedent. (The Carrier is authorized to offset the six hours at straight time already paid Claimant Berry.)