The Carrier telephoned the Claimant's home at 7:26 P.M. on June i, 1999 to ascertain if he wanted to fill the 11:00 P.M. vacancy. The Carrier left a message on the Claimant's telephone answering machine. The Claimant represented that he was not at home and he did not listen to the telephone message until sometime after 11:00 P.M. The Claimant did not call or otherwise contact the Carrier. The Claimant intimated that it was too late to contact the Carrier because it was past the starting time of the vacancy. The Claimant emphasized that he was home during the morning of June 2, 1999, and available to receive calls to perform overtime service.

Because it did not receive a response from the Claimant, the Carrier proceeded sequentially down the items listed in Rule 15. Ultimately, the Carrier forced a Train Dispatcher to cover the third trick vacancy which, in turn, created a vacancy on the second trick River Desk position on June 2,1999. The Carrier did not call the Claimant to work the second trick River Desk vacancy on June 2,1999 even though he, again, fit the parameters of Item 3. Instead, the Carrier utilized a Train Dispatcher junior to the Claimant off the guaranteed assigned Train Dispatcher's extra list.

The Organization argues that the Carrier was required to call the Claimant to the June 2, second trick River Desk vacancy per Rule 15, Item 3, because the Claimant was on his rest day and available.

Citing the Note following Item 6 of Rule 15, the Carrier justified its decision not to call the Claimant to the June 2 vacancy by contending that the Claimant had turned down the call to work the June 1 third trick vacancy which caused the June 2 vacancy.

The issue in this case is what is the meaning of the phrase, "turns down the call" which appears in the Note following Item 6 of Rule 15. The Carrier submits that, because it never received a response from the Claimant to the message that it left on the Claimant's telephone answering machine on June 1, that the Claimant, for all practical purposes, turned down theJune 1 call rendering him ineligible to 611 the resulting June 2 vacancy. The Organization submits that not only did the Claimant not turn down the call because he did not receive the message until after the 11:00 P.M. start of the third trick vacancy, but he was also at home, ready and willing to take calls the next morning.

Rule 15 does not directly address the instant factual situation which poses the dilemma of whether a failure to contact the Carrier after being called is tantamount to turning down the call. Certainly, the Carrier must have been experiencing a shortage

of Train Dispatchers on June 1 and 2,1999 and the Claimant was available on June 2 for the call which would have helped alleviate the short supply of Train Dispatchers. However, the dilemma was created by the Claimant's failure to respond to the call which, if not construed as turning down the call, could lead to some illogical results. For example, if a failure to respond to the call is not tantamount to turning down the call, a Train Dispatcher could simply ignore a telephone message (the call) and then, claim that he was available for a resulting vacancy even though, due to the deliberate lack of response, the Carrier logically concluded that the Dispatcher did not want to work the vacancy and the Dispatcher's preference not to work created another vacancy. The Board emphasizes that such a sharp shooting practice did not occur in this instance. The Claimant was not home at the time of the call. He did not receive the message until it was too late to accept the call. However, rules like the Note following Item 6, must be interpreted in a reasonable and logical fashion. The rule of reason dictates that the Claimant was under an implied duty to, at the very least, notify the Carrier, even if it was past the starting time of the June 1 third trick vacancy, that he had not received the message in time. Such a contact would not constitute turning down a call within the meaning of the Note following Item 6. Also, our decision promotes the purpose of the Rule. The Note following Item 6 is designed to encourage Dispatchers to accept calls so they will not be rendered ineligible for vacancies created by their rejections.

In conclusion, the Organization did not meet its burden of proving that the phrase, "turns down the call" does not cover the situation where the Train Dispatcher receives a call but fails to respond to the call. Indeed, because of a failure to respond, the Carrier would not know if, like in this case, the Claimant received the message too late or if the Dispatcher had intentionally decided that he did not want to accept the call. The Organization did not prove how the Carrier could discern between these two scenarios.

Therefore, a failure to respond to the call constitutes "turning down the call" within the meaning of the Note to Item 6 of Rule 15 under the peculiar facts of this case.

AWARD