For ready reference of your Honorable Board the provisions of said Agreement particularly pertinent to this dispute are quoted as follows:
OPINION OF BOARD: On Friday, December 25, 1959, a work day of the assignment, the Carrier blanked the position of second trick train Dispatcher, Side Lines, hours 3:15 P. M. to 11:15 P. M. in order to use him on another position that day. No trains were scheduled over this territory during this period except one passenger train east and west. No stations were open. Such work as was performed was by the Assistant Chief Train Dispatcher. No extra train dispatchers were available, and the claim is on behalf of a train dispatcher who was on a rest day of his current assignment. The, issue presented by the claim is whether the Carrier violated the provisions of Rules 3(c) and 7(c) of the Agreement when it did not fill the second trick Side Lines position on Christmas Day.
It is argued by the Organization that this provision of the Agreement applies because the Carrier blanked the second trick position in order to use the occupant thereof on another position it needed to fill because no extra dispatcher was available. The Carrier, on the other hand, argues that Friday, the day in question, was a regular work day of the assignment and Article 3 (c) applies only to rest days; that there is no rule in the Agreement prohibiting the Carrier from blanking a position when there is no work to be performed.
A number of prior awards of this Board have been cited by the Organization where the "Doubling" rule, similar in many respects to the rule on this property, was applied. With the exception of two, the awards dealt with blanking positions on the rest day of the assignment. In Award 5016, where the position was blanked on other than a rest day, considerable work remained that has performed by other dispatchers. In Award 6750 the applicable rule read: "Combining or blanking positions for relief purposes". No contention was made that there was no work to be performed on the day the position was blanked. Also the parties were in agreement that when the position blanked was a regularly established dispatcher position the rule in the Agreement precluded the blanking of such position. From these precedents we have concluded that in the absence of a showing that work remained on the blanked position or the rule specifically prohibited blanking a position or the parties by historical practice had otherwise applied the rule, then the "doubling rule" as written in the Agreement now before the Board applied to blanking positions on rest days. No rule in the current Agreement has been cited that precludes blanking a position on a work day of an assignment in exceptional circumstances (i.e., Christmas) when no work remains; and no historical practice prohibiting such has been demonstrated.
It is admitted the work load was light and on the basis of the record can be deemed to be inconsequential.
The Organization also contends that Article 7(c) was violated. This rule reads, in part, as follows:
But this rule relates to force reduction, and here there was no force reduction. Every available dispatcher was assigned. On this point we agree with what was said in the Award 10393 (Stark).
From the entire record and for reasons herein above expressed we have concluded that there has been no violation of the Agreement as claimed.
FINDINGS: The Third Division of the Adjustment Board, 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
LABOR MEMBER'S DISSENT TO AWARD 11131,
DOCKET TD 12536
The issue involved in the instant case was simple. The position involved was a regularly assigned position with work days designated as Monday to Friday with rest days of Saturday and Sunday. The position, contracted to the employes in conformity with Article 5(J) of the. Agreement was properly bulletined and assigned, and it was carrier's obligation to fill the position on Friday, December 25, 1959. No rule of the Agreement permits the blanking of a position notwithstanding the majority's holding that:
By no stretch of the imagination could Christmas, or any other holiday for that matter, be considered an "exceptional circumstance" nor is the quoted phrase found in any rule.
Holidays occur each year with regularity and the amount of work to be performed on such days by the occupant of the position does not give the carrier the privilege of either filling it or blanking it without mutual agreement. 11131--13 433
It was pointed out that the claimant organization is NOT a party to the 40-Hour Week Agreement, which permits blanking of positions on certain days. In the Train Dispatcher Five-Day Work Week Agreement there is no provision for five or six day work weeks, nor any provision which permits blanking of a position on an assigned work week. As the Referee is well aware this Board has only authority to construe Agreements in the light of the language which they there find. (Awards 10346, 9253, 7343, 5079) And the Referee is well aware of the long established principle that where no exception exists, none can be supplied by this Board. (Awards 10743, 6167, 5464, and 4854)
Nothing in the record casts doubt upon carrier's statement that the volume of dispatching duties on Christmas Day did not justify filling the position in question. However, Awards 5016, 6750, with rules and circumstances similar to those in the instant case held that "doubling of territory for relief purposes" as was done here was a violation of the Agreement.
Further, the Referee must be aware of the well established principle that whether the amount of work be. trivial or substantial is no concern of this Board whose only concern is, and must be directed to the question of whether under the facts disclosed by the record and in the light of the clear provision of the applicable rule or rules whether or not the Agreement was violated. And certainly there can no longer be any doubt concerning another principle
namely, that this Board cannot indulge in questions of equity. I cite but six of many Awards going to that point. Awards 3674, 6907, 9193, 10073, 10245 and 10352.
Award 11131 completely and erroneously rejects or ignores the clear and unambiguous provisions of the specific rule upon which the instant dispute turns. Article 3(c) is here quoted for ready reference:
Relief purposes as set forth in the above Rule are not confined to "rest day relief purposes" but is applicable to relief purposes for any reason. It is inescapable that had the parties intended the Rule to be confined to rest day relief, it would have been a simple matter to so state and we have no authority to read something into a rule that is not contained therein.
The majority erroneously rely on Award 10393. Even a casual review of that Award will show the fallacy of that reliance for the reason that in that Award the day involved was a "make work" day, and the Agreement covering that position permitted the carrier on such day to use the occupant on any vacant train dispatcher position. In the instant case no such assignment or Agreement was involved.
It seems logical to me that the principle to be applied here was thal stated in Award 6750. In that case, with almost identical rules as in the instant case, it was the Petitioner's position that:
"Your Honorable Board has rejected Carrier pleadings that it was faced with an emergency as an excuse for violation of a contract obligation. (See Third Division Award 2942).
"There is little if any controversy respecting the force and effect to be given applicable rules of the Agreement when a regularly assigned dispatcher position is blanked for one day. As we analyze their respective positions the parties agree that if the involved position be assumed to be a regularly established dispatcher position Article 3 (f) precluded the blanking of such a position and an Agreement, dated January 31, 1940, required that a temporary vacancy on such a position be filled by assigning Drake to fill it and permitting Short to work the rest day of his position.
"The trouble here comes from a contention advanced by Carrier that the facts disclose no vacancy on a regularly assigned dispatcher position due to the fact that the Monday relief assignment of Gipson's regular position was what is referred to as a utility assignment, i.e., that in order to comply with the requirements of Article 3 (e) of the Agreement Carrier made work for such position by creating the job of Assistant to the Chief Dispatcher for one day (Monday) of each week only. Based on this premise it is argued there was no position to relieve on Gipson's assignment on the date in question. We believe the fallaciousness of Carrier's position lies in its erroneous conclusion that the pertinent and previously mentioned Articles of the Agreement have application to the positions filled in relief by a regularly established relief position instead of days blanked on the regularly assigned relief position itself. Here it is conceded Carrier had made work on Gipson's position when it was established. It is our view that thereafter the work assigned to such position was a part of that regular assignment and the days thereof could no more be blanked than could days of other regularly assigned positions of different character. Here, also, a temporary vacancy existed in Gipson's regularly assigned position by reason of the Carrier's having taken Extra Dispatcher Snively, who was filling it during Gipson's absence on vacation, off such position, thereby blanking it at a time when no one contends the work theretofore 11131-15 435