On flay 30, 1993, the Carrier used T. Popivchak, designated by the Carrier as a dispatcher trainee (who was unassigned and was on furlough from his seniority position in the Signal Department), to fill a dispatcher's position on Desk 6.5 in the Carrier's Pittsburgh office on the first shift at the straight time rate. The Carrier assigned Popivchak rather than Claimant who was the incumbent dispatcher on Desk 7 and who was observing a regularly scheduled rest day. On that date. no extra dispatchers were available to cover the Desk 6.5 vacancy at the straight time rate.
The Organization asserts that because no extra Dispatchers were available for the assignment at the straight time rate, under Rule 5, Section 2(e) the Carrier was obligated to call Claimant as the senior regularly assigned Dispatcher. Relying upon the language in Rule 5, Section 2(e) that when "it therefore becomes necessary to assign an employee who must be paid at the overtime rate", the Carrier argues that it has the right to assign any straight time employee within the confines of the Agreement, prior to being required to call a Dispatcher on his rest day at overtime. According to the Carrier, nothing in Rule 5 restricts the Carrier in filling vacancies at the straight time rate. Trainee Popivchak, according to the Carrier, was available at the straight time rate. The Carrier also relies upon Rule 2.
The problem with the Carrier's Rule 5 argument is that Rule 5, Section 2(e) specifically states that "Where, in the performance of extra work, no extra employees are available who can be used at the straight time rate of pay ... assignment BjU be made in accordance with the following order ... 3. Senior available qualified train dispatcher on his rest days" [emphasis added.] This was "extra work" as defined in Rule 5, Section 2(a). The vacancy on Desk 6.5 was a relief requirement of less than five days. No extra dispatchers were available for assignment at the straight time rate. The rule governing the assignment of this "extra work" specifically and clearly provides that if no extra employees are available at the straight time rate, then "Senior available qualified train dispatcher on his rest days" (Claimant) "will" be assigned. The rule says nothing about "trainees". Rather, the rule speaks to resting qualified Dispatchers and mandates that when an extra employee cannot fill the position at the straight time rate, employees such a Claimant "will" be assigned. Given that mandate ("will"), this Board does not have authority to change that rule and allow for the assignment of "trainees" such as Popivchak over Claimant.
The language in Rule 5, Section 2(e) relied upon by the Carrier ("and it therefore becomes necessary to assign an employee who must be paid at the overtime rate") does not change the result. This language does not clearly give the Carrier the right to assign any straight time employee within the confines of the Agreement, prior to being required to call a Dispatcher on his rest day at overtime. On the contrary, under a plain reading of the rule, if the Carrier cannot get an extra employee to fill the vacancy at the straight Form 1 Award No. 31706
time rate, "it therefore becomes necessary to assign an employee who must be paid at the overtime rate" and, "assignment will be made in accordance with the following order" through available incumbent or qualified dispatchers on rest days.
The Carrier's reliance upon Rule 2 also does not change the result. Rule 2 states. in pertinent part:
Rule 2 governs the determination of seniority. Rule 5 governs assignments. This is an assignment dispute. Rule 5 mandates that Claimant should have been assigned the extra work.
The Carrier argues that in light of the Organization's position it will be difficult to add new employees to the ATDA roster. However, any such perceived difficulty flows from the clear language of the negotiated rule. Again, we do not have authority to change that rule.
In light of the outcome, we need not address the Organization's argument that the Carrier is bound in this case by Public Law Board No. 3477, Award 6.
As a remedy, because Claimant was denied a work opportunity at the overtime rate, Claimant shall be made whole at that rate. Form 1 Award No. 31706
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.