NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association for and in behalf of B. C. Jones, Train Dispatcher, InternationalGreat Northern Railroad Company, that:
EMPLOYES' STATEMENT OF FACTS: An agreement on rules governing working conditions, between the parties to this dispute was in effect at the time this dispute arose. A copy thereof is on file with this Board and is, by this reference, made a part of this submission as though fully incorporated herein. The scope of said agreement, pertinent to the instant dispute, reads as follows:
There also exists a letter-agreement, dated Palestine, Texas, May 1, 1948, signed by Mr. T. Short, Chief Personnel Officer of this Carrier, addressed to and accepted by Mr. . P. Sowell, General Chairman, and approved by Mr. J. B. Tipler, Vice President, of the organization, which stipulates that the Carrier would require the chief train dispatcher (referred to in the exception of the scope rule, above quoted) to take one regularly assigned day off per
The above quoted provisions are contained in the letter of May 1, 1948 for the express purpose of taking care of just such emergency situations as arose in this instance, and it was not practical under those circumstances to handle the situation other than was done. It would not have been practicable, and neither to the best interest of the men nor the Carrier to have used Mr. Jones as either Chief Dispatcher (Division Trainmaster) or Night Chief Dispatcher on the dates in question.
Aside from and in addition to Mr. Jones not being considered qualified for the position of Chief Dispatcher on the dates in question, attention of the Board is directed to the fact that two of the dates in question-April 17 and 24, were Sundays. It has previously been pointed out that Mr. Jones' regular position was Assistant Agent-Telegrapber at Hearne, a six-day-per-week position on which he worked Monday through Saturday, with Sunday his off day. Had Mr. Jones been used on the Chief Dispatcher (Division Trainmaster) position on Sunday, April 17 and on Sunday April 24, he would have been working on his regular off day. In other words, the Employes are taking the rather inconsistent position that the Chief Dispatcher (Division Trainmaster)
should not have been permitted to work on his day off, and at the same time contend that Mr. Jones should have been used on his day off. In the final analysis, based upon the Employes' contentions and claim in this case, and assuming as contended by the Employes that Mr. Jones was qualified to work the position of Chief Dispatcher (Division Trainmaster), the controversy resolves itself into a question of whether it was more practicable, and the "best interest of men and Company alike" would have been served by using a regularly assigned Assistant Agent-Telegrapher, whose experience and ability in dispatching work was limited, on his day off, or the regular occupant of the Chief Dispatcher position, whose experience and ability were well and long established, on his day off.
Referring to the other two dates involved in this claim-April 13 and 20, on which it is contended that Mr. Jones should have been used on the position of Night Chief Dispatcher at San Antonio. Attention is again directed to the fact that Mr. Jones regular assignment was Assistant Agent-Telegrapher at Hearne, assigned hours 9 A.M. to 6 P.M., Hearne is located 169.5 miles north of San Antonio. The hours of assignment of the Night Chief Dispatcher at San Antonio are 8 P.M. to 4 A.M. Mr. Jones could not have worked his assignment at Hearne and then been able to make himself available for service as Night Chief Dispatcher at San Antonio. Therefore, to have used Mr. Jones as Night Chief Dispatcher at San Antonio on April 13, would have necessitated relieving him at Hearne on April 12 and 14 the day prior and day subsequent to April 13, as well as on April 13; and to have similarly used him at San Antonio April 20 would have necessitated relieving him at Hearne on April 19 and 21 as well as April 20. In other words, in order to perform two days work as Night Chief Dispatcher he would have lost six days on his position of Assistant Agent-Telegrapher at Hearne, the inconsistency and impracticability of which is so obvious that further comment thereon would be superfluous.
When consideration is given to all the facts and circumstances involved in this case it is clearly evident that there is no justification, merit or basis whatever for the Employes' contention that Mr. Jones should have been used on either the Chief Dispatcher (Division Trainmaster) position April 17 and 24, or the Night Chief Dispatcher position on April 13 and 20, 1949, Therefore the contention of the Employes should be dismissed and the accompanying claim accordingly denied.
OPINION OF BOARD: The Employes claim that the Carrier · iolated the Agreement between the parties when it failed to use Extra Train Dispatcher B. C. Jones to relieve the night chief dispatcher at San Antonio, 5002-10 25
Texas on April 13 and 20, 1949, and the chief dispatcher in the same office on April 17 and 24, 1949, such dates being the regularly assigned rest days of the night dispatcher and the chief dispatcher, respectively, and that due to the violation, the Carrier must pay the claimant the difference between what he was paid on the days in question and the amount he would have earned had he been used to relieve the night chief dispatcher and the chief dispatcher.
The claimant was promoted to dispatcher on April 5, 1948. He was available as extra relief dispatcher but working as assistant agent-telegrapher at Hearne on a six-day-per-week position, working Monday through Saturday, Sunday being his off day. The chief train dispatcher had as rest day, Sunday, and the night chief dispatcher had as rest day, Wednesday.
We will consider this claim in two parts as the chief dispatcher is excluded from the effective Agreement but is covered by a letter as to rest days dated May 1, 1948. The night chief dispatcher is included in the Agreement.
As to the alleged violation of the Agreement as to the chief dispatcher, a letter of May 1, 1948, reading as follows is contained in the docket:
The pertinent part of this letter states that "but the Carrier is privileged, if in its judgment necessary, to require that the position be filled by the dispatcher in that office whom it considers best qualified; qualifications being equal, the senior man will be given the preference"; also, that "the Company's interest shall control".
The Carrier states that the claimant was not qualified to fill the chief train dispatcher's position and many Awards have held that this is a matter exclusively for the Carrier to determine, and such a determination once made will be sustained unless it appears that the action of the Carrier was capricious or arbitrary. Awards 2299, 2350. No such showing was made by the claimant. However, under the letter agreement, Carrier was obliged to fill the chief train dispatcher's position on his relief day. And in not so doing and allowing the chief dispatcher to work his rest day, the claimant was deprived of work as an extra train dispatcher and should be compensated for the day as he is obliged under the contract to protect all extra work under the Agreement or lose his seniority. This part of the claim will be remanded back to the parties to ascertain what amount of money is due the claimant for the work he should have received as extra train dispatcher on April 17 and 24, 1949, if the chief dispatcher had not been allowed to work his rest days.
As to part (2) of the claim, the night chief dispatcher is covered by the Agreement, and Rules pertaining to the alleged violation read as follows:
The Carrier states that the claimant was not qualified to fill the night chief dispatcher's position on April 13 and 20, 1949. The claimant was qualified 5002-12 27
as an extra train dispatcher on April 5, 1948, and he had to protect all extra work or forfeit his seniority. There are no qualifications defined in the Agreement of a night chief dispatcher or any dispatcher for that matter. When the Carrier failed to use this claimant on the nights of April 13 and 20, they violated the Agreement.
The Carrier also contends that it was impracticable to use the claimant as night chief dispatcher on April 13 and 20; also, that the claimant was not available for extra service on all dates in this claim and that the claimant could not be relieved due to the shortage of operators. All of these contentions have been reviewed by this Board and found not to be well founded and without merit.
The claimant shall be paid the difference between what he earned on April 13 and 20, 1949, and what he would have been paid if he had worked the night chief dispatcher's job.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
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
The Carrier violated the terms of the Agreement as indicated in the Opinion.