(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the American Dispatchers Association that:

 (a) The Missouri Pacific Railroad Company (hereinafter referred to as the 'Carrier'), violated its Train Dispatchers schedule working 'Agreement', including Article 4 (d) 6 (e). Extra Dispatcher I. E. Chatman had been previously instructed to work the third trick Assistant Chief Dispatcher positions vacancy (that had been incorrectly assigned to Mr. J. E. McVey) on March 5, 1983. Therefore the necessity for the 'Carrier' to fill this position on that date is evident by their attempt to do so with Mr. Chatman. With no other 'Extra' Dispatchers available, the next person in line should have been the senior qualified regular assigned Dispatcher available, in this case Mr. K. R. Bartlett.

 (b) Because of said violation, the Carrier shall now compensate claimant Mr. K. R. Bartlett one for not being used on the above position on March 5, 1983."

 OPINION OF BOARD: On March 5, 1983, the incumbent was not available to fill
 his regular Night Assistant Chief Train Dispatcher posi
 tion. Carrier called on Extra Dispatcher Chatman to fill the vacancy, but he
 was unavailable due to illness. Carrier thereafter blanked the position,
 triggering this dispute. The record indicates that no other extra dispatchers
 were available and further that normal train activity continued on the shift
 in question. Claimant herein was the senior available regular Dispatcher and
 was qualified to fill the position; he was on one of his rest days.















Article 5 in relevant part states:











          (c) Temporary Vacancies


          Temporary vacancies or new positions of ninety (90) days' duration, or less, may be filled under the provisions of paragraph (c) ...." [underlining added]


The Organization insists that there is nothing in the Agreement which permits the Carrier to blank the position, but rather the Agreement provides for "filling positions" in several of its rules (such as Article 4 (e)). It is argued further that the blanking of a position amounts to its abolishment, even for one day. In that context the Organization notes that a minimum of three days notice is required by Rule 5 (g) if Carrier contemplates abolishing a position. It is also argued that if Carrier had the unilateral right to blank positions at will, nearly every Agreement rule could be nullified or perverted. It is also asserted that Carrier has in the past paid Claims for similar violations. The Organization cites numerous Awards holding that Train Dispatcher positions, being seven day positions, may not be blanked.

 Carrier take the position that it has the right to determine whether or not a vacancy will be filled and in this instance had the prerogative of blanking the position in question. Carrier notes that there is nothing in the Agreement requiring it to fill a Train Dispatcher position in the absence of the regular incumbent. Carrier cites a number of closely related awards, namely, Third Division Awards 10393, 11131, and 17704 in support of its position.

 The crux of this dispute is whether Carrier has the right to blank a Train Dispatcher's position. The Board believes that if Carrier's position is sustained, it would nullify a number of critical provisions of the Agreement such as Rule 5(g). It is not believed that this was the intent of the drafters of the Agreement.

 The Board has carefully studied and evaluated the reasoning in the conflicting series of Awards on this subject and has concluded that the better reasoned Awards support the Organization's position. For example, in Third Division Award 25811, this Board stated:

          "The issue at the core of this Claim is whether the Carrier has the unilateral right to blank an Assistant Chief Train Dispatcher position in the ab of the regularly assigned employee. The National Agreement of Nay 30, 1979 does not directly address the question .... The inclusion in the National Agreement of the Jury Duty Rule, which specifically grants Carrier the right to blank Dispatcher positions in one limited circumstance, suggests by clear implication that the Carrier lacked an unconditional right to blank positions in other circumstances. The Carrier's unsuccessful attempt to obtain similar language for due to bereavement leave suggests a similar lack of general authority ....

                    Award Number 26682 Page 4

                    Docket Number TD-26410


Particularly in view of the apparent recognition in the 1979 National Agreement negotiations that Carriers do not possess the right to blank Dispatcher positions (as indi Board is convinced that in this dispute Carrier did not have the right to blank the disputed position. The Claim must be sustained.

        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

        That the Agreement was violated.


                        A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest:
        ancy J. -Executive Secretary


Dated at Chicago, Illinois this 23rd day of November 1987.