Third Division Award No. 35085 (Scheinman)

"The Organization disputes the Carrier's claim that the Claimant was unavailable to perform the work in question. It argues that the Carrier provided no probative evidence that it attempted to contract the Claimant to offer him the assignment. According to the Organization, therefore, the Claimant is entitled to 11 and one-half hours of pay at the overtime rate.

The Carrier, on the other hand, asserts that its assignment of the work was reasonable under emergency conditions, and therefore was proper. The carrier states that on February 5, 1992 there was a serious derailment south of Dallas that necessitated the reassignment of the Carrier's employees in the Dallas-Austin Division. To compensate, the Carrier explains, it required its San Antonio Division employees to work off their district and cover the southern portion of the Dallas-Austin Division.

The Carrier asserts that two days later, on February 7, 1992, another emergency situation developed - a fire on the main track between Dimebox and Giddings, Texas, damaging 500 feet of ties and rails. Consequently, the Carrier immediately needed employees to lay replacement track panels, and it dispatched two Foremen from a San Antonio track gang one hour away. The Carrier asserts that it believed, in good faith, that the Claimant was unavailable, 200 miles away at Eagle Lake, Texas.

The Carrier asserts that unless it is restricted by agreements, it may determine the manner in which work and operations are performed in the best interest of efficiency and economy. It maintains that this record contains no evidence of any such restrictions. Moreover, according to the Carrier, in an emergency, it must be allowed great latitude in making on the spot judgments that should not be upset even if later, "more leisurely reflection' demonstrates that the judgments were erroneous. The Carrier maintains that it believed in good faith that the Claimant was more than 200 miles away. It argues that under the circumstances it acted in good faith when it called and assigned the work to employees who were only one hour away. The Carrier states that without proof that the Claimant was available and that it acted in bad faith, it cannot be held liable for a violation of the Agreement.

After carefully reviewing the record evidence, we have determined that the Organization's claim must be sustained. The Carrier's conclusion that the Claimant was unavailable, while made in good faith, lacked an evidentiary basis. We understand that the Carrier was confronted by an emergency. Nevertheless, we find that the Carrier was required to make a greater effort to follow its Seniority Rules."