NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-20193
Irwin M. Lieberman, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific
( Railroad Company
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association
that:
(a) The Chicago, Milwaukee, St. Paul and Pacific Railroad
Company (hereinafter referred to as "the Carrier"), violated the effective Agreement between the par
particular, when it failed and refused to compensate Claimant Train
Dispatcher J. Leavitt at the time and one-half rate for February 5,
6, 7, 8, 9, 12, 13, 14, 16, 19, 20, 21, 22, 23, 26, 27 and 28, 1972.
(b) Because of said violations Carrier shall now be required
to compensate Claimant Leavitt the difference between straight time
rate and time and one-half rate of the position worked at Ottumwa, Iowa
for February 5, 6, 7, 8, 9, 12, 13, 14, 16, 19, 20, 21, 22, 23, 26, 27
and 28, 1972.
OPINION OF BOARD: Claimant, a regularly assigned Second Trick Train
Dispatcher at Ottumwa, Iowa, was assigned to a
Third Trick Dispatcher vacancy at Dubuque, Iowa by bulletin dated Janu
ary 3, 1972. He requested to be transferred as quickly as possible on
January 18, 1972, but did not secure the new position until March 1,
1972 - continuing to work at Ottumwa in the interim.
Petitioner cites Rule 28 of the Agreement, which provides:
"RULE 28 - TRANSFER TO AWARDED POSITIONS
Transfer of successful applicants for new positions
and vacancies shall be made as soon as reasonably
possible when the carrier has train dispatchers
available. If the carrier has train dispatchers
available enabling it to effect such transfer and
does not do so, then beginning on the sixteenth
(16th) day after successful applicant makes written
request upon the proper officers of the railroad for
transfer, but not in any event until thirty (30) consecutive calendar days have elapsed after assign
by bulletin, Rule 7 shall become applicable."
Award Number 20228 Page 2
Docket Number TD-20193
Rule 7, referred to in Rule 28, provides inter alia that a
train dispatcher required to work a position other than the one he
obtained in the exercise of seniority shall be compensated therefor
at the time and one-half rate. To further understand the intent of
the parties we note that Rule 27 provides that a dispatcher who fails
to accept a position which has been awarded to him by bulletin becomes
an extra dispatcher.
Both parties agree that the essential issue in this dispute
is whether there were train dispatchers available, within the meaning
of Rule 28.
Carrier asserts that there were no extra train dispatchers
available and that the consummation of Claimant's transfer was dependent on a series of moves and po
1950 in a prior agreement) that the Organization's officer who negotiated the rule interpreted the r
contends that the readoption of a rule without change implies readoption of the interpretation place
awards which affirm that principle. Carrier's position on this portion of the dispute fails for lack
certain that neither party would accept the principle that a unilaterally determined interpretation
binding upon both; surely then such an interpretation cannot be considered to be "mutual" for purpos
Hence we have no Board or mutual interpretations or practice to fall
back on.
The parties in writing the Agreement defined an extra dispatcher as "an unassigned train dispatcher"
term was used in Rule 28, which merely specified that transfers shall
be made "...when the Carrier has train dispatchers available". Carrier's
position would have this Board modify Rule 28 by in effect changing the
language quoted to insert the word "extra" before train dispatchers. As
both parties know full well this Board's jurisdiction is limited to the
interpretation and application of the language of agreements, not their
re-writing. "We are precluded from adding, subtracting, or modifying
the provisions of an Agreement." (Award 12637)
Award Number 20228 Page 3
Docket Number TD-20193
Carrier argues that it was not reasonable to expect it to
assign the relief train dispatcher to Claimant's Ottumwa assignment
since that would place the burden of twenty one shifts on three men
each week (presumably until an additional dispatcher could be assigned). We do not agree. Carrier ma
of employees to be assigned to each location and also as to whether or
not extra employes will be carried on the roster; this prerogative of
management carries with it the concomitant responsibility of living up
to the obligations imposed upon Carrier by the Agreement (Award 18331
and others). We see no burden but the extra cost of overtime to Carrier, which is in part, at least,
number of train dispatchers to be carried at the location. In Award
12374 we said:
"While Carrier alone has the right to determine the
size of the work force in any craft, it has a duty
and obligation to keep available an adequate number of
employes so that the terms of the Agreement are not
breached. Carrier is obligated to have a sufficient
number of available signalmen on its roster for its
needs. If it fails to do so, it may not complain when a
penalty is assessed for a contract violation."
The principle enunciated above is certainly applicable to this dispute
No assertion of emergency is involved herein and we find that the clear
language of Rule 28 is controlling.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
7
hat the Agreement was violated.
Award Number 20228 Page 4
Docket Number TD-20193
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 30th day of April 1974.