"The Burlington Northern Santa Fe Railroad Company (hereinafter referred to as "the Carrier") violated the current effective agreement between the Carrier and the American Train Dispatchers Department, Brotherhood of Locomotive Engineers (hereinafter referred to as "the Organization"), Articles 3(b), 7(a), 12(a), the Letter of Agreement dated May 31, 1973 and the Memorandum of Agreement dated March 5, 1974, Item 2 in particular, when on June 24, 2000 (not "June 26, 2000", as the Carrier's declination states), the Carrier allowed and/or required a junior train dispatcher to protect the position of 2d Trick Brush and provided compensation at the overtime rate of pay, rather than allowing train dispatcher K. E. Hand, the senior qualified train dispatcher available under the Hours of Service Law, to protect the aforementioned position at the overtime rate of pay."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

On June 24, 2000, a vacancy arose on the second trick Brush Dispatcher position at the Carrier's dispatching office in Ft. Worth. The Carrier could not fill the position with a qualified employee from the extra board. Rather than calling the Claimant who was observing a rest day, the Carrier assigned K. D. McCully (who was junior to the Claimant and assigned to work another second shift Dispatcher position in the same office) to work the second trick Brush Dispatcher position and compensated McCully at the overtime rate. In this claim, the Organization contends that the Claimant should have been called for the second trick Brush Dispatcher position rather than assigning the work to junior Dispatcher McCully.

Article 2(e) provides:

"(e) SERVICE ON POSITIONS OTHER THAN SENIORITY CHOICE

An assigned train dispatcher required to work a position other than the one he obtained in the exercise of his seniority, except an assigned train dispatcher who is used on the position of chief dispatcher, or assistant chief dispatcher, shall be compensated therefor at the overtime rate of the position worked; however, except as provided in Article 18, no additional payment shall be made to such train dispatcher due to not having worked his regular assignment."

The May 31, 1973 Letter of Understanding provides:

"This refers to our exchange of correspondence ending with my letter dated April 27, 1973, and discussion in conference on May 23,

1973 at which I was represented by Mr. K. A. Voelk, in connection with your proposal of October 26, 1972, to amend the existing agreement applicable to filling temporary vacancies and to define who is entitled to a sixth or seventh day in the absence of an extra train dispatcher who has not performed five days' service within seven consecutive days.

At the conclusion of the discussion, it was agreed that when there is no extra train dispatcher available who has not performed five days' dispatching service within seven consecutive days, dispatchers will be called for service in the following order:

1. The regular incumbent of the position.

2. The senior regular qualified train dispatcher available under `Hours of Service Law.'

3. The senior qualified extra train dispatcher available under the `Hours of Service Law.'

The above understanding serves to dispose of the proposals to change the existing agreement as set forth in your letter of October 26, 1972, and except as specifically provided herein, this understanding does not modify or in any manner affect schedule rules or agreements."

The Organization argues that under language in the May 31, 1973 Letter of Understanding (". . . when there is no extra train dispatcher available who has not performed five days' dispatching service within seven consecutive days, dispatchers will be called for service in the following order . . . [t]he senior regular qualified train dispatcher available under `Hours of Service Law"' [Emphasis added]), the Claimant was entitled to work the second trick Brush position instead of junior Dispatcher McCully. On the basis of prior precedent, we disagree.

The Board previously addressed similar disputes between the parties. In Third Division Award 34144, rather than using the senior claimant therein who was working the first trick, the Carrier moved a junior Dispatcher assigned to the first

trick to fill a vacancy in another position on the first trick and compensated that employee at the overtime rate and utilized an extra board employee to work the resulting vacancy. The Board denied the Organization's claim that the senior claimant should have been transferred under the provisions of the 1973 Letter of Understanding finding that ". . . the Letter of Understanding is reasonably read to cover situations in which dispatchers are called in to work":

"The Board sees no conflict between Article 2(e) and the 1973 Letter of Understanding. Article 2(e) is a pay provision. It provides penalty pay to an `assigned train dispatcher' who is `required' to work a position other than the one selected by the dispatcher through seniority exercise. This can only be read as a deterrent to the Carrier from removing a dispatcher from a regularly assigned position. It follows that, as a pay Rule, it is silent as to any order of selection for such `required' move.

The May 31, 1973 Letter of Understanding, as the Organization asserts, is mandatory in its terms. The Board, however, notes that it is applicable `to filling temporary vacancies and to define who is entitled to a sixth or seventh day.' There is no indication that these two conditions are considered separately. Put another way, the Letter of Understanding is reasonably read to cover situations in which dispatchers are called in to work.

Does the Letter of Understanding apply to the reassignment of a dispatcher during the dispatcher's regular duty hours, as here? There is no basis to draw this conclusion, especially in view of the provisions of Article 2(e). As noted above, the inference to be drawn from Article 2(e) is that a dispatcher may be `required' (thus, involuntarily) to move to another assignment temporarily, with the condition that the dispatcher receives premium pay for so doing. Here, the move was to another assignment on the same trick, and no extra hours of work were involved. The Board finds no barrier to the Carrier's selection of such a move as may be most efficient and without regard to seniority. There is no way, in fact, to determine whether the senior of two qualified employees, if preference could be

made, would elect not to move to another assignment to fill a onetrick vacancy or would wish to transfer for the sake of the additional pay.9

In Third Division Award 36519, again between the parties, rather than using the claimant therein who was senior and on a rest day, the Carrier covered a vacancy that occurred during a shift by using on duty Dispatchers. The Board denied the claim, relying upon Third Division Award 34144:

"The May 31, 1973 Letter of Understanding, containing the Order of Call, is a mandatory provision. The Carrier must strictly comply with the enumerated items in the Letter of Understanding. However, a prior decision between these same parties (Third Division Award 34144) interpreted the same Rules and held that the mere occurrence of a vacancy does not presumptively trigger the mandatory terms of the May 31, 1973 Letter of Understanding ....

The holding in Award 34144 applies to the facts in this case inasmuch as the carrier did not call Dispatchers into work. Pursuant to the ruling in Award 34144, the May 31, 1973 Letter of Understanding does not apply to the reassignment of a Train Dispatcher during the Dispatcher's regular tour of duty."

Third Division Awards 34144 and 36519 previously decided between the parties are not palpably in error and control this matter. The reassignment here occurred during the second shift and involved Dispatchers on that shift. No Dispatchers were called in. As found in Third Division Award 36519 "[p]ursuant to the ruling in Award 34144, the May 31, 1973 Letter of Understanding does not apply to the reassignment of a Train Dispatcher during the Dispatcher's regular tour of duty." On the basis of those Awards, this claim shall be denied.

Other Awards between the parties cited to us do not change the result and are distinguishable. In some cases, the results support the Carrier's position and our conclusion in this particular case. For example, in Third Division Award 35987, the

facts showed that the claimant was called for a different vacancy than the one in dispute and declined the offer, which then exhausted the list of qualified Dispatchers under the Hours of Service Act. Other Dispatchers were then called to fill vacancies. After reporting, one of the Dispatchers did not feel "comfortable" working the vacancy and was permitted to work his regular assignment. The Carrier then directed the Dispatcher on duty who was junior to the claimant to fill the vacancy. The Board denied the claim on the grounds that ". . . no explanation is offered as to how the Claimant could have been `available' to fill a vacancy on a trick that had already commenced." But the point is that the Carrier utilized a junior Dispatcher from the trick and made the assignment. That is consistent with the result in this case. Third Division Award 36224 - also a denial Award - involved a dispute over whether the Carrier was required ". . . to offer an overtime assignment in another position when such assignment would prohibit the employee, under the Hours of Service Law, from meeting the obligations of his regular assignment." That is not this case. Third Division Award 34003 involved a situation where there was a one shift vacancy on the first trick and rather than calling in the claimant who was a second trick Dispatcher and available, the Carrier held over a third trick Dispatcher for five hours and called in a second trick Dispatcher three hours earlier to fill the vacancy. Clearly, under the May 31, 1973 Letter of Understanding the claimant who was senior and available should have been called - and the Board so found. But again, those are not the facts in this case. The vacancy in this case occurred on the same shift and the Carrier simply moved personnel on that shift and "did not call Dispatchers into work." Third Division Award 36519, supra.

Third Division Award 36985 with this Referee participating is also distinguisbable. There, the claimant was called on two occasions to fill vacancies and declined the offers. Another vacancy occurred and the Carrier bypassed calling the claimant because of the prior refusals of offers. There, we sustained the claim noting the obligation to call under the May 31, 1973 Letter of Understanding and concluded "[tlhe Claimant in this matter did not indicate her "`non-availability on the date in question,' she just turned down specific offers for specific jobs." Once again, that is not this case. Finally, as we have in this case, Public Law Board No. 6519, Award 12 relied upon Third Division Award 34144 and found that Award ". . . finds that the Carrier is not required to use the senior train dispatcher when it requires a train dispatcher to move to another assignment on the same shift."

AWARD