' Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32923
Docket No. TD-32851
98-3-96-3-188
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(American Train Dispatchers Department/International
( Brotherhood of Locomotive Engineers
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM:
"(a) The Carrier has failed to maintain an adequate number of qualified
employees to fulfill the requirements of service. On June 16, 1995, the
Carrier violated the 1/1/65 Agreement including, but not limited to,
Articles 3 (e) and 4 (f) when it failed to separately fill the West Belt and the
Merchants Train Dispatcher's position on the first shift (7AM-3PM).
Instead, without agreement to do so the Carrier combined these positions
to prevent providing relief as required by the Agreement.
(b) Due to such violation, the Carrier shall now compensate B. J. Hosp
an additional 4 hours overtime pay (7AM-l1AM) at the rate of the West
Belt train dispatcher's position and K. E. Valdejo an additional 4 hours
overtime pay (11AM-3PM) for service they should have performed under
the Agreement."
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.
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On June 15,1995 at 8:40 P.M., incumbent West Belt Dispatcher D. G. Masek laid
off sick creating a vacancy for the first shift (7:00 A.M. - 3:00 P.M.) on Friday, June 16,
1995. The Carrier called General Chairman R. W. Filges at 8:54 P.M. on June 15,1995
to fill the position, which was refused. At 5:06 A.M. on June 16, 1995, J. H. Ward was
called, with no answer. Claimant Hosp was working a third shift assignment and C.
Volner was on vacation. The Carrier then blanked the June 16, 1995 West Belt Train
Dispatcher position on the first shift and combined the West Belt and Merchants Train
Dispatcher positions.
Articles 3(e) and 4(f) state,
in
pertinent part:
"(e) - RELIEF SERVICE:
It is understood that relief dispatchers may be used in lieu of extra
dispatchers to perform extra train dispatchers services on days that will
not interfere with their regular relief assignments. Relief requirements of
less than four (4) days per week will be performed by extra dispatchers
who will be paid the daily rate of each train dispatcher relieved.
Each dispatcher's position shall be considered a `relief requirement'
as referred to herein. Any exception must be by Agreement between the
management and the General Chairman.
(f) - EXTRA WORK:
Except as provided in the second paragraph of Article3 (b) and the
last paragraph of this Article 4 (f), when an extra dispatcher is needed, the
senior extra train dispatcher who is not performing train dispatcher
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service, and who can be called and used without violating the Hours of
Service Law, shall be called and required to perform the service unless
prevented by physical disability, leave of absence, or other justifiable
reasons, which reasons must be given to the supervisory officer in writing,
and a copy will be furnished to the Office Chairman on request."
This is not a case where the Carrier has an unfettered right to combine positions.
Article 3(e) is clear that "[e]ach dispatcher's position shall be considered a `relief
requirement'" and "[a]ny exception must be by Agreement between the management
and the General Chairman." When the Carrier blanked theWestBeltTrainDispatcher
position on the first shift and then combined the two positions on Friday June 16,1995,
it did so on that day of the week without "Agreement between the management and the
General Chairman" in violation of Article 3(e).
In this case, the requested relief shall be granted.
First, there is no reason expressed in the record developed on the property why
Claimant Valdejo was not called. He is therefore entitled to the requested relief.
Second, even assuming as the Carrier argues that Claimant Hosp's working
would have violated Hours of Service provisions, that fact does not preclude payment
to him. "That [Hours of Service argument] 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." Third Division Award 30454. The Carrier has not sufficiently shown why it
would violate Hours of Service to require the Carrier to pay (not work) Claimant Hosp
as a consequence of the Carrier's operating with a limited number of Dispatchers and
an Agreement provision which requires "Agreement between the management and the
General Chairman" to combine the positions in this case. To find otherwise would
effectively allow a violation of the Agreement to go unremedied because the Carrier
exercised a prerogative and chose to limit the number of available Dispatchers.
Third, this is not a case where there was a partial blanking of a position and no
evidence that work of that blanked position was performed which could limit a remedy.
See Award 30454. Here, the position was blanked for the
entire shift. Had West Belt
Dispatcher Masek not marked off sick, and without any evidence to the contrary, we
must assume that he would have had a shift's worth of work to perform on June 16,
1995.
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AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 23rd day of November 1998.