Dispatchers available to perform the work at the straight time rate. Therefore, it was necessary for a Train Dispatcher to be called at the overtime rate in accordance with Rule 15, Order of Call.
The Carrier contacted Dispatcher J. L. Norris to fill the vacancy based on its determination that he was the senior "rested and available" Dispatcher under the Order of Call. Dispatcher Norris works the position of first shift C&M, with rest days on Saturday and Sunday. He had been on vacation for three days prior to observing his rest days on November 29 and 30, 2003.
Saturday and Sunday as rest days. The Organization contends that the Claimant, who is junior to Dispatcher Norris in seniority, should have been called to fill the November 30, 2003 vacancy because Dispatcher Norris did not fall within the Order of Call on his rest days following a vacation. The rest days following a vacation are considered as part of the vacation, in accordance with well-established precedent, the Organization maintains. In Third Division Award 29039, for example, the Board held:
r~c.sucaaaaa~ ·Y(C(l cuc f11JC Uay V1 LIM a3Jigr1CU LAVC-Uaf WVLKWCCK al1U extenong through the rest days following the vacation period. There is no established precedent, the Carrier asserts, and indeed no Rule or Agreement language, which require a similar outcome where, as here, an employee has taken a day or two of split vacation prior to observing his rest days. The Carrier submits that the Dispatchers on this property who take split vacation days are considered available under the order of call, and have been assigned to overtime in circumstances similar to the instant case. This practice further substantiates its position that Dispatcher Norris was properly called to protect the vacancy on Sunday, November 30, 2003.
the Agreement has been violated. We carefully examined the Agreement provisions relied upon by the Organization. Neither Rule 15, Order of Call, nor Rule 46, Vacations, address the situation now before us. The Agreement language on its face fails to support the Organization's claim.
The precedent Awards cited by the Organization do not change the result. Those cases addressed the narrow circumstance in which an employee extended his vacation period through the five-day workweek to include the two rest days prior to returning to work. Split vacation provisions - which permit employees to take vacation one day at a time - were not the focus of analysis.
The usefulness of precedents, no matter how sound the reasoning and principles upon which they are based, nonetheless depends upon the similarity of the situations to which they are to be applied. The facts in the instant case are distinguishable from the cases relied upon by the Organization. It was the Organization's burden to prove that the logic in those cases was equally applicable to the matter at hand. It has not done so.
Our conclusion in this regard is bolstered by the assertions and counter assertions on the property regarding the practice of the parties. The Carrier Form 1 Award No. 38131
nee iArtPd that rPCt davc have not hepn inrlnded ac part of the varatinn np.rind when vacation is allowed for less than a full workweek. The Carrier provided various examples in which employees have been called on their rest days after taking vacation on a day-to-day basis. The Organization responded that it has not previously filed a claim because overtime was offered to those employees only after the Carrier had exhausted the order of call. Given the opposing assertions regarding the nature and scope of the past practice, it was incumbent upon the Organization to produce evidence to support its assertions. In the absence of such evidence on the record, we must conclude that the Organization did not shoulder its burden of proof.
nn thn hack of the fnreuninu_ we find that the Oruanizatinn failed to establish that the Carrier violated the Agreement when it did not select the Claimant for the overtime assignment on November 30, 2003. Accordingly, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.