"Section 10-b. Temporary vacancies of not more than seven (7) calendar days' duration may be filled in the following order of precedence: (1) as a fifth day of service for any available relief train dispatcher holding a four-day assignment, (2) by the senior qualified and available unassigned train dispatcher who will not thereby have claim to work more than five (5) consecutive days or (3) as provided hereinafter for a temporary vacancy of more than seven (7) calendar days. A temporary vacancy known to be of more than seven (7) calendar days' duration will be made known to the train dispatchers in the office and will be filled by permitting regularly assigned train dispatchers to place themselves, in accordance with their seniority, on this and any other vacancy, other than that of selected assistant chief dispatchers, resulting from such placement; any such temporary vacancy on which a regularly assigned train dispatcher does not place himself to be filled by the senior qualified and available unassigned train dispatcher who will not thereby have claim to work more than five (5) consecutive days. Upon completion of such temporary service, regularly assigned train dispatchers affected shall either displace a junior regularly assigned train dispatcher occupying a
OPINION OF BOARD: On Saturday, February 3 and Sunday, February 4 1968, the regularly assigned third trick Assistant Chief Dispatcher (11:00 P.M. to 7:00 A.M.) laid off work on account of illness.
By notice dated February 3, 1968 Carrier blanked the position for Saturday and Sunday, stating that no trains were to be operated on those shifts.
Claimant was regularly assigned Relief Dispatcher whose regular schedule was relief of Chief Dispatcher on Sunday, relief of second trick Assistant Chief Dispatcher on Monday and Tuesday, relief of third trick Assistant Chief Dispatcher on Wednesday and Thursday. His rest days were Friday and Saturday.
Claimant contends that he should have been used at time and one-half rate to fill the temporary vacancy created for these two days by absence of Third Trick assistant Chief Dispatcher.
Employes cite Article II, Section 10-b of the Agreement. It reads as follows:
In Employes' view, there existed a temporary vacancy in the instant situation within the seven day limit laid down by 10-b and therefore should have been filled "by permitting regular assigned train dispatchers", in this case, Claimant, to place himself in the vacancy. Inasmuch as Claimant was on the last day of his two rest days on Saturday and was not due to report for duty until 7:00 A.M. on Sunday, he was available for the 11:00 P.M. to 7:00 A.M. vacancy on Saturday night and the 11:00 P.M. to 7:00 A.M. vacancy on Sunday night. It is conceded that he would not then have been able to work his own assignment on Sunday (relief of Chief Dispatcher, 7:00 A.M. to 3:00 P.M.) on account of the Hours of Service Law.
Carrier takes the position that Article II, Section 10-b does not require the assignment of any employe under these circumstances, because it does not prevent Carrier from blanking a position when the regularly assigned incumbent of such position absents himself therefrom and there is no work to be performed.
(a) The statement therein that "Temporary vacancies . . may be filled" etc. This is regarded as clear retention of discretion to fill or not to fill as a management prerogative.
(b) The specific exclusion of "selected assistant chief dispatchers" from right of access to the vacancies dealt with. The position in question is held by Carrier to conform to this category.
Carrier's position, in sum, is that there is nothing in the Agreement which requires that overtime hours be made available for non-existent work to a holder of a five-day assignment who worked on each of the days of his assignment and was in fact scheduled to work on Sunday. February 4, 1968 starting at 7:00 A.M. the time on which the Saturday claimed shift would have ended and the day on which the Sunday claimed shift would have started (at 11:00 P.M.).
This Board has repeatedly upheld Carrier's right to blank positions when the incumbent of a position is not available, except where an Agreement rule expressly guarantees that such position be worked. We find no such guarantee in Article 11, Section 10-b, nor does the record reveal one elsewhere in the Agreement. There is no showing in the record that the blanking of work for the title and the shift or in any way a subterfuge. Awards 7256, 12099, 13175.
"Furthermore, it appears to us that the mandatory provision urged by the Organization was intended to apply to the method used in selecting the replacement-rather than prohibiting the Carrier from exercising its right to blank a position. If such was the intent of the parties, they could readily have inserted language to that effect. In the absence of a specific rule depriving the Carrier from exercising its basic inherent right, we may not
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
The agreement if clear. The aggreement states unequivocally a temporary vacancy " . will be made known to the train dispatchers . . :' and then further states °. .. will be filled ..." (E.S.)
This language should mean what it says. The absence of work has no bearing on the claim. Train dispatcher positions are seven days-a-week positions and the carrier so admits in the record where it produced the regular assignments. This chart of positon has a column titled "Work Days" and the position involved shows as work days Saturday and Sunday. The claim days in this dispute are a Saturday and a Sunday.