Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32373
Docket No. TD-31864
97-3-94-3-176
The Third Division consisted of the regular members and in addition Referee
John C. Fletcher when award was rendered.
(American Train Dispatchers Department/International
( Brotherhood of Locomotive Engineers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim No. 1
`Consolidated Rail Corporation violated».the current effective
agreement...Rule 4, Section 2 (A) and Rule 12 (B) when Carrier refused to
allow placement of the senior applicant on the temporary assignment on
the first day the Claimant was entitled to work the assignment and then
required the Claimant to fill a position on a trick other than the trick to
which the Claimant was entitled to work on Saturday, January 16 and
Sunday, January 17,1993. The Carrier shall now compensate Ms. Russell
4 hours compensation at the pro rata rate applicable to the Assistant Chief
Dispatcher rate for Saturday, January 16 and Sunday, January 17,
1993».'
Claim No. 2
`Consolidated Rail Corporation ...violated the current effective
agreemenL.Rule 4, Section 2 (A) in particular when the Carrier refused
to allow placement of the senior applicant on the temporary assignment on
the first day the Claimant was entitled to work the assignment. Ms.
Russell submitted application for the temporary assignment commencing
January 13, 1993 and was determined to be the senior applicant. Ms.
Russell was available to start the temporary assignment on Thursday,
January 14, 1993 as this was her second rest day of her present
assignment. The Carrier shall now compensate Ms. Russell one (1) day of
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97-3-94-3-176
compensation at the pro rata rate applicable to the trick train dispatcher
for Thursday, January 14, 1993..."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
At the time of the two claims under review here, Claimant was assigned to the
Second Shift "K" Desk, with Wednesday -Thursday rest days. A vacancy existed on the
First Shift "C" Desk, with Tuesday - Wednesday rest days. Claimant made application
to work the vacant "C" Desk position on a hold-down, as provided in Rule 4 of the
Agreement, effective Thursday, January 14, 1993. Carrier determined that she was the
senior qualified applicant for the hold-down, but did not transfer her to the vacancy
until January 23, 1993, the date a Guaranteed Assigned Dispatcher was available to fill
Claimant's position at the straight time rate.
Carrier's refusal to transfer Grievant to the hold-down generated two claims
from the Organization. The first seeks additional compensation, under Rule 12(b) for
Saturday and Sunday January 16-17, 1993, because Claimant was required to work an
assignment other than the one she was entitled to work on those days. The second seeks
additional compensation, under Rule 4, Section 2(b) for Thursday, January 14,1993,
because Claimant was not placed on a hold-down she was entitled to work.
Carrier acknowledges that Claimant was entitled to be transferred to the hold
down, but says that because an extra expense would have resulted in filling her vacancy
it was excused, by the explicit language of the Agreement, from effecting her immediate
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97-3-94-3-176
transfer. Carrier claims that no employees were available to fill a vacancy on
Claimant's regular position at straight time rates.
The operative Rule involved in this matter is Rule 4, Section 2(a). That Rule in
pertinent part reads:
"Rule 4 - Selection
of
Positions
Section 2. - Temporary Assignments
(a) Temporary positions or vacancies known to be
of
five (5) or
more working days duration will be assigned to the senior qualified
applicant who makes written request therefor. When it is known
sufficiently in advance that such a temporary position is to be established
or that such a temporary vacancy will occur, the applicant must be made
not more than six (6) nor less than (3) calendar days prior to the date that
the establishment
of
the position takes effect or the vacancy begins; when
not known sufficiently in advance to permit the foregoing procedure to be
followed the application must be made within three (3) calendar days after
establishment
of
the position or the occurrence
of
the vacancy.
The senior applicant will be placed on the temporary assignment on
the first day following determination by the proper officer that he is the
applicant entitled to such assignment; provided, however, that nothing in
this rule shall require that such placement be made effective on a day or
days that would entail additional expense to the Company through
payment
of
the overtime rate under this Agreement.
* * r
An applicant assigned to a position or vacancy under the provisions
of
this section will take the working days and the rest days
of
the new
assignment beginning with the first day he is placed on such assignment.
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Train dispatchers requesting temporary assignments under this
section will do so without additional expense to the Company."
Rule 4, Section 2(a) in one instance excuses Carrier from placing the senior
applicant on a temporary assignment if additional expense through the payment of
overtime is involved, and in a second instance says that Train Dispatchers requesting
a temporary assignment will do so without additional expense to the Carrier. The two
provisions, fairly read, can only mean that Carrier is excused from placing the senior
applicant on a temporary assignment when this would entail additional expense through
the payment of the overtime rate to fill the ensuing vacancy in the applicant's regular
position. In this matter Carrier has shown that Claimant's vacancy could only be filled
at overtime rates. Accordingly, it did not violate the Agreement when she was not
assigned to the temporary vacancy.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 30th day of December 1997.