Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33027
Docket No. TD-32977
99-3-96-3-363
The Third Division consisted of the regular members and in addition Referee
Many E. Zusman 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 Sept. 13,
1995, the Carrier violated the effective Schedule Agreement including, but
not limited to, Article 3 (e) an 4
(f)
when it failed to separately fill the West
Belt and the Merchants position on the 2nd shift (3pm-llpm). 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 R. W.
Filges six (6) hours pay at the overtime rate applicable to the Merchants
position as provided for in Article 2 (d)
of
the Agreement."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
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
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Parties to said dispute were given due notice of hearing thereon.
As background, the Carrier has two Train Dispatcher positions on second shift
(3:00 P.M. to 11:00 P.M.) the West Belt and Merchants. On September 13, 1995, the
Merchants Train Dispatcher was removed from service at 5:00 P.M. pending a
disciplinary Investigation. Evidence of record from the West Belt Dispatcher is that the
territories were combined and the remaining six hours of the second shift Merchants
Dispatcher position was reassigned by computer to the West Belt position.
The Organization argues that the Carrier violated the Agreement when it
combined the two positions. The combining effectively blanked the 2nd shift Merchants
Dispatcher position without any agreement to do so. The Organization maintains that
in particular, Article 3(e) and 4(f) were violated, wherein Article 3(e) holds that:
"Each dispatcher's position shall be considered a `relief requirement' as
referred to herein. Any exception must be by Agreement between
management and the General Chairman."
Since no Agreement existed each position had to be filled separately and could not be
combined as the Carrier did in this instance. The Organization argues that the Carrier
violated Article 4(f) in that:
".
. . when an extra dispatcher is needed, the senior extra train dispatcher
who is not performing train dispatcher service, and who can be called and
used without violating the Hours of Service Law, shall be called and
required to perform the service. . . :'
In that the Claimant was available and the position should not have been
combined, the Carrier violated the Agreement in not calling the Claimant to fill the
remainder of the vacant position. Additionally, the Organization maintains Carrier
violation of Article 5(e) in that no emergency existed and that pay for such violation
should be forthcoming under Article 2(d) for service during unassigned hours.
The Carrier argues that no violation occurred as the position went blank due to
an emergency situation in the middle of the shift. The emergency required the
Merchants Dispatcher to be pulled from service. It further argued that the Claimant
Vile
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. Award No. 33027
Docket No. TD-32977
99-3-96-3-363
had worked his regular position and could not fill the blanked position due to the Hours
of Service. The Carrier denies the applicability of Articles 3(e) and 4(f) stating:
"Article 3(e) (Relief Service) Not relevant. The blanking of the subject
shift was unexpected and for only six (6) hours. This Rule contemplates
regular relief assignments of four (4) or more days' relief service per week
and is about establishing regular relief assignments to cover same."
"Article 4(f) (extra work) Not relevant. This Rule Contemplates extra
work for the extra Dispatchers and Claimant was a regularly assigned
Train Dispatcher and worked his regular position."
The Carrier further disputes the applicability of other Articles alleged to have
been violated. It argues that Article 5(e) which discusses emergency conditions
"contemplates a permanent reduction in force," not the situation at hand, and states in
part "not less than five (5) calendar days' advance notice of the abolishment of a regular
position shall be given in writing to the general Chairman. . . :' The Carrier denies
applicability as Article 5(e) refers to a permanent reduction and:
"It has nothing to do with a situation where a regular Train Dispatcher is
relieved of his duties during his shift for gross negligence and the
remaining Dispatcher on duty fills in on a need-basis until the next shift,
as involved in this instant case."
The Carrier denies any payment due under article 2(d) which is "not relevant as
Claimant was not required to perform any service" during unassigned hours.
The Carrier asserts that all Articles alleged to be violated are inapplicable. The
Carrier maintains it has no provision restricting it in the manner disputed. It is the
Carrier's position that it did not violate the Agreement, in that it is not obligated to fill
the position when it is not permanent, but partial. Lastly, the Carrier maintains that
there is no showing that the West Belt Dispatcher did any work of the Merchants Train
Dispatching position on the claim date.
The Board has studied the factual situation and the Agreement Articles in
dispute. Article 3 constitutes a negotiated provision which has three interrelated
paragraphs. Only paragraph one contemplates as the Carrier argues the establishing
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99-3-96-3-363
of regular relief assignments. Paragraph two distinguishes relief Dispatchers from extra
Dispatchers and the penultimate paragraph applicable herein is that presented by the
Organization, that each Dispatcher's position "shall be considered a `relief
requirement"' unless agreed to by the parties. Accordingly, as there is no dispute that
this claim involved two separate positions, they each constituted a relief requirement.
Article 4(f) therefore was applicable and an extra Train Dispatcher was to be
called. Although the Carrier argues initially that Claimant could not fill the position
due to Hours of Service, the highest officer rejected due to the fact that the Claimant
was not an extra Dispatcher, but regularly assigned and had worked his regular
position. Under Article 4(f) if the Claimant was the senior extra Train Dispatcher not
performing service and could be called without violating Hours of Service, he should
have been called if an extra Dispatcher was "needed" for the six hours remaining.
Further, Article 5(e) has no relevance as the language applies to a "reduction in
force" which upon study was not negotiated, contemplated or created for applicability
to the instant circumstances. In this dispute, the Board sustains the first part of the .. /
claim in that the Carrier violated Article 3(e) and 4(f) in combining positions. As for the
second part of the claim there is no showing that in blanking the position any work was
performed. The Organization has the burden of proving all elements of the claim and
all that exists in this record for proof is that "Mr. Rick Gatner reassigned territories on
the computer." The Carrier stated without rebuttal that "there is no showing that the
remaining Train Dispatcher performed any duties of the blanked position." Claimant
should have been called if the partial blanking due to removal for "gross negligence"
required that "an extra dispatcher [was] needed." We find no Rule obligating the
Carrier to fill a partial position under unexpected circumstances where no extra
Dispatcher was shown to be needed, as no actual service was performed. Lacking proof
thereof, the second part of the claim must be denied.
AWARD
Claim sustained in accordance with the Findings.
Form 1
Page 5
Award No. 33027
Docket No. TD-32977
99-3-96-3-363
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimants) 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 25th day
of
January 1999.
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