Parties to said dispute waived right of appearance at hearing thereon.
At approximately 4:45 P.M., Merchants Train Dispatcher A. L. Isenhart was informed by Carrier's Trainmaster that he had been selected for a random drug test in accordance with U. S. Department of Transportation - Federal Railroad Administration (FRA) regulations. Mr. Isenhart was transported to the testing site, returning to the Dispatcher's Office at 6:15 P.M. During Mr. Isenhart's ninety minute absence, the "West Bend" Train Dispatcher, R. W. Filges, was the only second shift Dispatcher on duty.
The organization protested Carrier's action maintaining that Mr. Isenhart's absence constituted a "reduction in force" which created "extra work." The Organization asserted that the position should have been "separately filled" by the senior extra Dispatcher and that Train Dispatcher Filges was entitled to "one and one-half hours pay at the rate applicable to that of the Merchants Train Dispatcher's position" for performing "two (2) jobs."
Carrier denied the claim stating that during Mr. Isenhart's absence, the remaining second shift Train Dispatcher on duty "filled in" on Mr. Isenhart's position on a "need-basis." Carrier maintained that this is "the normal and customary procedure when one of the Dispatchers is out of the office," and denied any violation of the Agreement. Finally, according to Carrier, during the time Mr. Isenhart was away from his job, he was "under pay," no "extra work" was performed, and no "reduction in force" occurred.
At approximately 6:40 P.M. on November 29, 1990, Carrier Trainmaster Leehy removed second shift West Belt Train Dispatcher K. E. Valedejo from' service for disciplinary reasons. Carrier tried unsucessfully to call Mr. J. H. Ward, to cover the "extra work" occasioned by Mr. Valedejo's absence. However, Mr. Ward could not be reached and, according to Carrier, the next senior extra Dispatcher, Mr. Hosp, was ineligible to be called under the Hours of Service Law. The Carrier therefore utilized the other onduty Dispatcher, Mr. Isenhart, to a a need arose." Form 1 Award NO. 30454
The Organization protested Carrier's action asserting that senior Train Dispatcher B. J. Hosp was "available to work on an emergency basis, to fill the vacant position at 7:00 P.M., under Section 63(c) of the Hours of Service Law, and should have been called to work" in Mr. Valedejo's stead. The Organization further asserted that Train Dispatcher Isenhart should be "appropriately compensated for the 4 hours and 35 minutes" during which he "was assigned Mr. Valedejo's duties in addition to his own."
Carrier denied the claim submitting that: "Due to the Hours of Service Law, the only available Dispatcher to work this position was Mr. J. H. Ward. Carrier attempted to contact Mr. Ward at 6:51 P.M., but was unable to reach him. Carrier assessed that Mr. Hosp had worked from 11:00 P.M. to 7:00 A.M., and could not have been called for said position due to the Hours of Service Law. Finally, Carrier argued that even if, arguendo, Mr. Isenhart performed any duties as a result of Mr. Valedejo's absence, he was "compensated accordingly."
With regard to claim #1, the record does not show that any Article 4 (f) "extra work" was needed by Carrier or performed by Mr. Filges during Mr. Isenhart's ninety minute absence from-the West Bend Dispatcher position. Nor can the ninety minute diversion of an employee for a FRA-required test be considered a "reduction in force" or an "abolishment" of the position within the plain English meaning of those terms in Article 5 (e) of the Agreement. Accordingly, we find no support in fact or in contract for the claims presented in claim #1.
Turning to Claim #2, we are not presuaded that the disciplinary removal of Mr. Valedejo from service constituted a "reduction in force" or an "abolishment" of the West End Dispatcher position on the date in question. To the contrary, Carrier did not abolish the position but, rather, attempted unsucessfully to cover it by calling an "extra dispatcher," J. H. Ward, to fill Mr. Valedejo's vacancy. Carrier defends its failure to continue calling B. J. Hosp under Article 4 (f) on grounds that Claimant Hosp was "outlawed" under the Hours of Service Law. That is an affirmative defense to a prima facie violation of Article 4 (f) and we are not persuaded that Carrier has carried its burden of proof. Accordingly, we shall sustain that portion of Claim #2 which seeks a recovery for Mr. Hosp. Rergarding the additional claim for Mr. Isenhart, there is no showing that he actually performed any "extra work" on claim date. Form 1 Award No. 30454
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.