The facts of this case are not in dispute. At the time this dispute arose, the Claimant was a Train Dispatcher employed by Burlington Northern, Inc., in the Carrier's consolidated train dispatching office at Fort Worth, Texas. The Claimant successfully bid on a temporary vacancy on a second shift position that was to begin on December 18,1997. Had she been placed "immediately" into the position, her first work day would have been December 24, 1997. However, she was held on her regular assigned second shift position through December 28, 1997, first working the temporary vacancy on December 29, 1997. Thus, there was a delay of five days in her actual assignment to the temporary vacancy.
By letter of March 15, 1998, the Organization filed a claim alleging that the Carrier had violated Articles 12 (i), 12 (j), and 2 (e) of the Agreement. Those provisions read in pertinent part as follows:
1t is the position of the Organization that the Claimant was awarded a position, but forced to work another assignment from December 24 - 28,1997. The Organization maintains that the transfer to a temporary vacancy must be made on the effective date of the assignment. It also asserted that if an employee is not transferred to an awarded assignment upon the effective date of that assignment she/he is entitled to the penalty rate of pay provided in Section 2(e) of the Agreement.
The Carrier contends that none of the Rules cited by the Organization to support its position sets a time limit for transferring employees into a temporary vacancy into which they have bid. In addition, the Carrier notes that there is no applicable language in the Agreement establishing a penalty payment for delaying the transfer of employees to temporary positions. According to the Carrier, the language of 2(e) and 12 (h) applies only to employees already working in permanent positions who are forced to work a position other than their own for a period of time. Finally, the Carrier points to Article 12(h), which states in part: "Every reasonable effort shall be made to promptly place dispatcher on positions awarded to them under bulletin and assignment rules."
The Board carefully read the applicable Agreementlanguage in this case. It finds that the Carrier is correct when it notes that there are no penalties provided for failure to place employees immediately into jobs for which they bid and which were awarded. Further, in order to make sense of the provisions of 2(e) and 12(h), the language of 2(e) can only come into effect once a regular position has been awarded and worked. Otherwise the language of Section 12(h) of the Agreement is rendered meaningless. Thus, the Board finds that the Organization failed to show that the Carrier delayed transfer of the Claimant for an unreasonable amount of time, or that it delayed transfer in an arbitrary and capricious manner, or that the Claimant was financially Form i Award No. 35616
Labor Member's Dissent
To Third Division Award Nos. 35616, 35617, 35618
Docket Nos. TD-35240, TD-35214, TD-35215
(Referee Elizabeth C. Wesman)
In reaching its decision, the Majority not only ignored common sense, it ignored the basic principles of contract construction. In doing so it has changed the Agreement between the parties. Something it doesn't have the authority to do. Therefore, the decision is not worth the paper it is printed on.
The dispute was really rather simple. The Carrier posted a notice of a temporary position. The Claimant bid on the position. The Carrier awarded the temporary position to the Claimant. Then, the Carrier refused to allow the Claimant to move to the temporary vacancy in accordance with the clear provisions of the Agreement.
The parties' intent is clear. Temporary positions would be posted and awarded to the successful bidder so that be/she could "transfer thereto on [the] effective date" of the temporary position.
The Majority, however, chose to apply another provision of the Agreement, which had nothing whatsoever to do with temporary positions, to justify its decision. That provision being Article 12 (h), captioned "FILLING REGULAR POSITIONS", which reads:
Labor Member's Dissent
To Third Division Award Nos. 35616, 35617, 35618
Docket Nos. TD-35240, TD-35214, TD-35215
(Referee Elizabeth C. Wesman)
It was this provision of the Agreement, dealing only with the filling of regular positions, that the Majority clutches to when it says, "the Board finds that the Organization has failed to show that the Carrier delayed transfer of the Claimant for an unreasonable amount of time". This rationale is even contrary to the Carrier's position as indicated on page S of its Submission to the Board, which reads:
The Carrier's foremost argument was that Article 12 (i) (Filling Temporary Positions) contained no time limit provision for placing a train dispatcher to a temporary position; therefore it was free to place the Claimant on the Temporary Position at its leisure. However, given the obvious meaning and clear language of Article 12 (h), (i) and (j), an exception, such as the one included in Article 12 (h), is necessary to override the requirement of a transfer to the temporary position on its effective date.
Article 12 (i) requires that successful bidders for regular and temporary positions "transfer thereto on their effective date." Article 12 (h) provides an exception for transfer to permanent positions. There is no such exception contained in Article 12 (i) concerning temporary positions, therefore none can be taken, contrary to the Majority's opinion.
Another flaw to the Majority's decision is concerning Article 2 (e) and its application. The Majority found that "the language of 2 (e) can only come into effect once a regular position has been awarded and worked". With regard to the application of Article 2 (e) for "regular" or "permanent" positions, given the exception contained in Article 12 (h) dealing with permanent positions, that is correct concerning permanent positions. However, for the Majority to say that Article 2 (e) has no application with regard to temporary positions is contrary to the clear language or Article 2 (e), which reads in part:
There is no mention at all in Article 2 (e) that says it only applies to being required to work a position other than a "regular" or permanent position. It very clearly pertains to working any position "other than the one ...obtained in the exercise of his seniority."
Labor Member's Dissent
To Third Division Award Nos. 35616, 35617, 35618
Docket Nos. TD-35240, TD-35214, TD-35215
(Referee Elizabeth C. Wesman)
The only way a train dispatcher can "obtain" a temporary position is by exercising his/her seniority. This is clear by the provisions of Article 12 (i) and (j). Once a train dispatcher bids on and is awarded a temporary position, that temporary position has been obtained and transfer thereto has to be on the effective date. If the Carrier does not allow the transfer on the effective date of the temporary position, then Article 2 (e) applies and the train dispatcher is entitled to compensation at the overtime rate for being "required to work a position other than the one he obtained in the exercise of his seniority".
The Majority's decision, if accepted as precedent, renders the provisions of the Agreement concerning temporary positions meaningless. For the Majority to say that the Agreement provides for the Carrier to post notice of a temporary position, award the temporary position to the senior bidder and then not allow the successful applicant to transfer to the temporary position, is nonsensical. The parties would not have gone to all the trouble of making these Agreement provisions for nothing. And, given the fact that when these provisions were agreed to a temporary position was one that would be vacant for as little as five days, makes the Majority's decision that the Carrier has not violated the Agreement when is prevents someone from transferring to a temporary position for five days even less plausible.
Carrier Members' Response
to Organization's Dissent to Awards
35616,35617,35618
(Dockets TD-35240, 35214, 35215)
(Referee Wesman)
It is difficult to understand the Organization's Dissent to Third Division Awards 35616, 35617 and 35618 although we do agree that the "disputes" were "really rather simple". Each of the Claimants had been assigned/awarded a position but were held to protect necessary work. Organization's claims were that Article 12 (i) required the immediate movement to these positions on the effective date.
Article 12 (i) does not provide any time frame. However, the Board held that movement must be in reasonable time and this corresponds to the "reasonable" requirement of Article 12 (h). As the Dissenter notes at page 2, Article 12 (h) provides that "reasonable effort" would be made to place dispatchers on positions. That caveat, such as it is, does not exist for temporary positions. Therefore, there was no contractual bar to the Claimants' being held on their former positions. It was unrefuted on the property that:
The Dissent does not address these facts. These decisions do not make the handling of temporary positions "meaningless". What they do substantiate is there is no contractual penalty when dispatchers are not immediately moved to a temporary position.
Labor Member's Response
To Carrier Members' Response
To Labor Member's Dissent
To Third Division Award Nos. 35616, 35617, 35618
Docket Nos. TD-35240, TD-35214, TD-35215
(Referee Elizabeth C. Wesmanl
It is not difficult to understand why the Carrier Members found it difficult to understand the Dissent to these Awards, given their Response.
In their Response, the Carrier Members say that "It was unrefuted on the property that:" leading into a quote from "Page 3 of Award 35616". They then follow up the quote by saying, "The Dissent does not address these facts". The Carrier Members are correct in that the Dissent did not address these "facts" and there is a good reason why it didn't.
The Carrier Members' so-called "facts" are actually not the "facts". The quote they attribute to "Page 3 of Award 35616" is not from page 3 (or any other page) of that Award, nor is it from Award 35617 or Award 35618. Therefore, since the quote is not factual, neither are the associated statements by the Carrier Members.
Clearly the Carrier Members' Response does not address the facts, but rather attempts to make up some new ones. The Carrier Members' fiction in no way affects the validity of the Dissent.