Rule 37.C was in effect when calls were made from various field offices to fill vacancies requiring overtime at each of these locations. Rule 37.C remains in effect. When the Carrier established a centralized Field Support Center at Fort Worth, Texas, calls were made thereafter from the new facility.
The parties recognized that certain accommodations as to calling procedures would be required. They formulated successive Agreements to this effect, leading to Letter of Understanding No. 69 on March 10, 1998 ("LOU No. 69"). This was in effect on the date giving rise to the dispute here under review. LOU No. 69 provides in pertinent part as follows:
On April 27, 1998, there was a need to fill 22 second-shift vacancies, including Position No. 6215 during the two-hour calling period. To fill these positions, Callers followed LOU No. 69 steps 1 and 2, with the result that Position No. 6215 remained unfilled. At this point, the Carrier concedes that it required ("forced") the least senior qualified employee covered under Step 2 to "double" and accept the assignment. No attempts were made to fill Position No. 6215 under Steps 3 and 4.
According to the Organization, the Claimant was the next employee who would have been called under Step 3, had the Carrier proceeded with the call. It is the Organization's view that, by the Carrier's failing to follow the LOU No. 69 procedure, the Claimant was improperly denied this overtime opportunity.
The Carrier argues that it acted in conformance with LOU No. 69. The Carrier contends it exercised its appropriate right to "force" an employee, after its calls found no employee willing to accept the assignment under Steps 1 and 2.
1. The Carrier reasonably explains the difficulty of filling the perhaps unusually large number of remaining vacancies within the two-hour time constraint, if it were to follow all four steps specified in LOU No. 69. This, however, cannot sanction a violation of the procedure (if, in fact, the Board determines that a violation occurred). Form 1 Award No. 35703
2. The Carrier offers statistics to show the high level of overtime refusals, and it suggests in particular that the Claimant may well have refused an offer to work Position No. 6215. This, too, does not provide an adequate basis for Rule violation (again, if such violation is found to have occurred).
3. The Organization does not argue that forcing an employee to accept an overtime assignment is prohibited. Its position is that other commitments must first be met prior to such forcing.
The parties presented the Board with extensive evidence as to practice prior and subsequent to establishment of the Field Support Center, as well as with information concerning the intermediate Agreements reached prior to adoption of LOU No. 69. These accounts do not provide the Board with clear guidance in the resolution of this dispute. The central issue here is the meaning to be given to this phrase in Step 2 of LOU No. 69:
The Carrier asserts that the phrase, "can be doubled," means that an employee can be required to "double" at the point that other requirements in Steps I and 2 have been met. Thus, in this circumstance, Position No. 6215 remained vacant after completion of the canvass of employees under Steps 1 and 2. It follows, contends the Carrier, that it properly forced the least senior-qualified employee from another shift in the same classification and region.
The Organization strongly disavows this line of reasoning. The Organization's position is that acceptance of overtime assignment is and has been voluntary in all instances. The Carrier's authority to "force" an employee, according to the Organization, is limited to occasions when there is no qualified employee available after the entire sequence of the calling preference procedure has been exhausted. Thus, in the instance here under review, the Organization points out that the employee selected to fill in the vacancy (and who would thus be required to "double") initially declined the overtime opportunity. The Organization argues that this employee was improperly "forced," because the Carrier failed to proceed to Step 3, where the name of the Claimant would have been reached. (It is obvious that if the employee selected for the Form 1 Award No. 35703
assignment had voluntarily accepted, even if it meant doubling, there would be no basis for a claim; in fact, she initially declined and was then forced to accept.)
The Organization's Submission is replete with quoted Carrier assertions, both as argument and in informational Memoranda, that acceptance of overtime is voluntary - with the exception of forcing a junior qualified employee in the absence of acceptance by any other employee through the calling procedure. The Board finds these citations convincing as to the Carrier's understanding - at least for the period prior to establishment of the Field Support Center and, eventually, LOU No. 69.
Here it must be noted that LOU No. 69 became effective on March 10,1998. The instance here under review occurred on April 27, 1998, little more than a month later. This, the Carrier maintains, created new problems (particularly, the capacity of a single calling center and an allegedly high level of overtime opportunity refusals. This brings the Board back to the determinative issue as stated, above. Put another way, may the Carrier "double" the least senior qualified employee under Step 2 of LOU No. 69, without proceeding to Steps 3 and 4?
The Carrier's answer to this is in the affirmative. The Board does not agree. This conclusion comes after a full review of Rule 37.C and LOU No. 69 as written, and without reliance on various undocumented assertions made by the Carrier. This conclusion is based on the following:
1. The record shows the Carrier's acceptance of the principle of voluntary acceptance or rejection of an overtime offer; "forcing" previously was an acceptable solution only as an ultimate means to fill a position.
2. The Rule 37.C procedure, in effect prior to the Field Support Center, was limited in nature. The call sequence was:
It can be reasonably assumed that if no employee accepted in these three categories, forcing would then, and only then, be in order.
Again, if this sequence produces no acceptance, forcing is presumably the only alternative.
The Board finds nothing in LOU No. 69 which states that the Carrier may (because of time constraints or any other reason) terminate the overtime offers short of completing the accepted sequence.
3. What is the meaning of "can be doubled?" First of all, the language in LOU No. 69 as to doubling is identical to and carried over from Rule 37.C. There is no basis to believe the parties intended to give the phrase a different meaning in LOU No. 69 from that intended for Rule 37.C.
Does this mean that the phrase "can be doubled" permits the Carrier to halt the selection procedure and force an employee at this point to accept the overtime assignment? Is this a right preserved by the Carrier, even if never or rarely utilized under local rather than centralized calling? The Board believes these questions must be logically answered in the negative. A more reasonable interpretation, which appears to have been acceptable previously by both parties, is as follows: If it is necessary to call an employee in the same classification on a different shift, and the employee accepts, the placement is agreeable to both parties even if it means that the employee is doubling or had not been scheduled for work that day. It is also reasonable to conclude that the parties included this language to give employees the right to be called for overtime (and Form 1 Award No. 35703
accept), and at the same time anticipate and reject any claim by another employee as to why the selected employee was permitted to double or to be eligible for work on a rest day.
This, as the Board sees it, is what the parties agreed to, when several previous briefly effective Agreements were succeeded by LOU No. 69. The Carrier's presentation in its Submission raises some thorny questions as to whether the terms of LOU No. 69 can be made to work effectively in certain circumstances. The solution, of course, is not through arbitral direction but by further review and possible revision undertaken by the parties bilaterally.
The Award will thus sustain Paragraph 1 of the Statement of Claim. As to compensation sought in Paragraph 2, the Board finds no basis for a monetary remedy. If the Carrier had not forced an employee to accept the position after Steps 1 and 2 were completed, and if the Carrier had followed through on the mandatory procedure under Steps 3 and 4, what may have occurred thereafter is speculative. The Claimant's name may or may not have been reached, he may or may not have received the call, and he may or may not have accepted the assignment.
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.