The Third Division consisted of the regular members and in addition Referee John B. LaRocco when award was rendered.
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.
On Saturday, November 6,1999, the incumbent Train Dispatcher on the second trick Portal Desk position marked off absent due to illness at the Carrier's Main Train Dispatching Office in Minneapolis, Minnesota The parties concur that, inasmuch as there was not any guaranteed assigned or extra Train Dispatchers available to perform Form 1 Award No. 36312
The Parties agree that there was not any Dispatcher who fell within the categories covered by Items 1 through 5 of the Order of Call. The Claimant was the senior available and rested Train Dispatcher. He fit precisely within the parameters of Item 6 of Rule 15. Citing the Note following Item 3, the Carrier did not call the Claimant for the November 6,1999 second shift Portal Desk vacancy because, if he had filled the vacancy, the Claimant would have been unable to work his regular first shift position at the Minnesota Desk on November 7,1999. The Organization charges that the Carrier should have called the Claimant to work the vacancy. The Carrier further contended that it exhausted all eight items in the Order of Call so it combined the work of the Portal Desk with the work of the Dakota Desk.
Rule 15 establishes a hierarchy of calls. The Carrier must sequentially go down each item until it finds a Train Dispatcher to perform the overtime service. It is true, Form 1 Award No. 36312
that the Note following Item 3 disqualified the Claimant from being called by the Carrier when applying Items 1, 2 and 3 of the hierarchy. He was rested and available, but the Item 3 Note expressly excludes any Train Dispatcher who, if called, would be rendered unavailable for the Train Dispatcher's own assignment. The Carrier correctly asserts that had it called the Claimant, pursuant to Item 3, the Claimant would have been unavailable to work his regular assignment on November 7 per the Hours of Service Act. Thus, the issue becomes whether the Note following Item 3 permanently disqualifies the Dispatcher from the Order of Call or whether the Note operates to push the Dispatcher downward to a lower priority on the hierarchy.
The Board holds that the Note to Item 3 does not permanently and absolutely disqualify a senior, rested and available Train Dispatcher from the order of call. The placement of the Note is critical. The Note follows Item 3 and expressly mentions the first three categories. Thus, a Train Dispatcher covered by the Note is excluded from being called when the Carrier applies the first three categories even if the Dispatcher satisfies the parameters of Items 1, 2 or 3. If the parties had wanted to permanently exclude a Train Dispatcher from the ambit of the Order of Call, the Note would be placed after Items 6 or 7 and would contain an express reference to the preceding 6 or 7 categories. Thus, the Note operated to move the Claimant down the hierarchy of categories. But for the fact that the Claimant had a regular assignment on November 7, the Claimant otherwise would have been eligible for call under Item 3. By being ineligible for call at Item 3, the Carrier could bypass the Claimant and call a Train Dispatcher pursuant to Items 4 and 5. Had the Carrier been successful in finding a Train Dispatcher under Items 4 and 5, it would have properly refrained from using the Claimant. However, the Claimant became eligible to be called under Item 6. Indeed, Item 6 contemplates that the Carrier will be calling a Train Dispatcher who might encounter problems with the Hours of Service Act because Item 6 expressly addresses filling the vacancy created by a Train Dispatcher being called under Item 6.
Therefore, the Note following Item 3 shifted the Claimant's level of eligibility from Item 3 down to Item 6. By not calling the Claimant under the plain and unambiguous language in Item 6, the Carrier violated Rule 15.
Had the Carrier properly complied with Rule 15 by calling the Claimant to the November 6, 1999 second trip Portal Desk vacancy, the Claimant would have been compensated at the overtime rate, but he would not have worked his regular position Form 1 Award No. 36312
at the straight-time rate. Therefore, the Claimant incurred an overall economic loss amounting to four hours of pay.
Therefore, the Carrier shall compensate the Claimant for four hours at the straight-time rate of pay.
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.