The majority holding of this award has effectively redefined the term "rest day" for the Carrier's Guaranteed Assigned
In doing so, this Board has exceeded its authority. The Board should never directly or indirectly act to alter the Agreement that is before it. Third Division Awards 16799, 16835, 16489, 16441, 16373, 15937, 21426, and 23433 are just a few examples of the multitude of Awards upholding this principle. In order for the reader to clearly understand the change effected by this Award, relative to Guaranteed Assigned Dispatcher's rest days, an explanation of the circumstances surrounding the dispute is required.
The Claimant, an employee assigned to the Guaranteed Assigned Dispatcher's list, was advised by the Chief Dispatcher to be available to perform service on Wednesday, January 17, 1990.
According to questions and answers that accompany the Schedule Agreement, to be "fully available for service" an incumbent Guaranteed Assigned Dispatcher must "be at the normal place of calling which he has on record...". Some time after receiving these instructions from the Chief Dispatcher, the Claimant became ill and found it necessary to report off duty. Because the Claimant
Labor Member's Dissentwas notified to remain available for duty, and not told otherwise prior to reporting off due to his illness, the claim date, Wednesday, January 17, 1990 cannot reasonably be considered anything other '`ian a "workday" for the claimant.
"ARTICLE 10
SICK LEAVE AND SUPPLEMENTAL
SICKNESS BENEFITS
As spelled out in the Employees' submission to the Board, "There are three basic requirements, in order to be eligible for sick leave pay. ..One must be a regularly assigned Train Dispatcher, and be sick, and the days for which sick leave is payable must be work days."(emphasis added). There is no question that the Claimant satisfied all three of these requirements. "Agreement (s] must be applied and interpreted as written and as negotiated between the principles" [Third Division Award No. 20956]. "It is a fundamental rule of contract construction that we must ascertain and give effect to the :..-tention of the parties from the language employed in the written Agreement. We cannot look beyond the language and supply something that is not there" (emphasis added) [Third Division Award No. 18466]. Also, see Third Division Award 26262. Labor Member's Dissent
However, according to the Carrier, and validated by the findings of this erroneous Award, before this workday was compensable as a sick day, the Carrier retained the right to wait until the Claimant's work week was complete, and then decide if the claim date was a payable sick day or would be considered a rest day. The fact 'hat the Carrier determined Claimant's sick day was a rest day, post-facto, not only deprived him of the compensation claimed, but, also the right to enjoy a day of rest.
The future impact of this Award on Guaranteed Assigned Dispatchers could be that they may never again enjoy the benefits negotiated on 'heir behalf, relative to a true day of rest or compensation for workdays when they are too ill to perform service. Surely, the Carrier will now view this Award as license to manipulate the guaranteed Assigned Dispatchers workweek so that these benefits are never again available to these employees.
This claim should have been sustained in accordance with the clear, unambiguous terms of Article 10. The majority holding of this Award has allowed the Carrier an exception to the Agreement Article 10, not envisioned by the framers thereof.
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER'S DISSENT
TO
_AWARD 29346, DOCKET TD-29771
(Referee Fletcher)
The Labor Member's Dissent to the decision of the Majority in Award 29346 clearly emphasizes the underlying motives of the organization in progressing this issue.
It stands unrebutted that Appendix 6 to the Agreement clearly provides that Guaranteed Assigned (Extra) Train Dispatchers are assigned to work ANY five days within a 7-day workweek that commences on Saturday.
It also stands unrebutted that Article 10 of the Agreement provides sick leave payments when employees are unable to work because of illness.
Finally, it also stands unrebutted that the Claimant involved in this dispute lost no compensation whatsoever during the 7-day workweek that commenced on Saturday, in that he did perform service on five of the days within that workweek, notwithstanding the fact that he was absent account of illness.
Knowing full well the provisions of the Agreement in this respect, the Organization attempted to have this Board determine that the day the Claimant was absent account illness was an ASSIGNED workday for which he should be allowed sick pay. It would then follow, according to the Organization, that the Claimant would have had an ASSIGNED rest day later in that workweek in lieu of having to perform service to make his five days.
To further emphasize the ridiculousness of the organization'semployee suddenly has acquired an ASSIGNED workday (the day he was absent account illness) and an ASSIGNED rest day (sometime later in the same workweek). In other words, the Organization attempted to infer that Guaranteed Assigned (Extra) Train Dispatchers had "assigned" workdays and "assigned" rest days where no such Agreement provision granting them existed.
The Majority holding in favor of this Award clearly saw through this attempt on the part of the Organization and pointed out in the Board'.s denial Award that the Organization's claim found no support whatsoever in any provision of the Agreement.
The second page of the Carrier Members' dissent incorrectly states the Organization's position. Contrary to the Carrier Members' understanding, the Organization never contended "...that if the incumbent of a Guaranteed Assigned (Extra) Hoard Position is not available for work account illness during a particular workweek, that employee suddenly has acquired an ASSIGNED workday...". The Organization's position has been consistent in this regard, so, the Carrier Member's apparent confusion at this late date is perplexing. Correctly stated, the Claimant was entitled to sick leave compensation on the claim date only because it was workday. Factor that variable out of this dispute, and the Claimant would no longer satisfy the three essential qualifying requirements enumerated in the Labor Member's Dissent.
It seems the Carrier Members have found solace and reassurance in the illusioned belief that the claim date was not a workday. Exactly, why the claim date would not be an assigned workday for the Claimant remains unclear. After all, the Claimant was told by the Carrier's Chief Dispatcher to remain available for call that day. Of course, that fact also "stands unrebutted" in the record, but, I guess they just forgot to mention that.