On Friday, June 18, 2004, there was a vacancy on the second shift Wisconsin train dispatching desk. No qualified Extra Dispatcher was available to protect the vacancy at the straight time rate of pay. Moreover, no one responded to fill the vacancy under the Order of Call.
Before a position is combined or blanked for relief purposes, there must be negotiation and agreement between Management and the General Chairman in accordance with Rule 10. Accordingly, the Carrier contacted the General Chairman and told him that there was no one to work the vacancy and that it would be necessary to combine two positions in order to fill all vacancies. The Carrier responded in the affirmative when asked by the General Chairman if everyone observing rest days had been called. After obtaining the Organization's concurrence, the Carrier filled the vacancy by "sliding" the incumbent of the second shift Portal desk to cover the Wisconsin desk. The Portal position was then blanked and combined with the Dakota position.
The instant claim contends that the Carrier should have called the Claimant for the vacancy. In support of its position, the Organization relies upon an understanding it claims was reached during negotiations to revise Rule 16, Order of Call. The Organization maintains that the parties agreed to call in a Dispatcher ahead of shift after exhausting the Order of Call. That vacancy would then be backfilled. Pursuant to that agreed upon procedure, the Claimant should have been Form 1 Award No. 38214
called before resorting to blanking and combining a position to fill a vacancy, the Organization submits. Moreover, the Carrier improperly informed the General Chairman that there was no alternative but to combine the two desks. In the Organization's view, the Carrier should have informed the General Chairman of the Claimant's availability. Had the General Chairman known that the Claimant was not called to protect the vacancy, there would have been no agreement to combine the Portal and Dakota desks, it is asserted.
The Carrier submits that the Claimant was not eligible to work the vacancy on the second shift Wisconsin desk on June 18, 2004 because of the NOTE to Item No. 4, set forth above. This provision expressly states that a Dispatcher is ineligible for overtime if such work would result in his inability to protect his own assignment due to an Hours of Service Act conflict. Because the Claimant would not have been rested for his own assignment, he was not called. The Carrier further maintains that the Organization has not identified any Rule or Agreement provision which supports its position. Moreover, the Carrier denies that any extra-contractual understanding was entered into when Rule 16 - Order of Call was revised. On the contrary, the Carrier argues that the agreed upon modifications to Rule 16 - Order of Call granted it greater flexibility in filling positions. That greater flexibility was properly exercised here, the Carrier avers.
After careful examination of the evidence and the arguments presented by the parties, the Board finds that well-established principles of contract interpretation govern our determination in the instant case. Where there is language that is clear and certain, it must be applied as written. If a contract provision is ambiguous, then the Board's task is to ascertain what the parties intended and apply the provision based on their mutual understanding. Consideration of bargaining history can be an important form of extrinsic evidence if it demonstrates what unclear or ambiguous language meant to the negotiating parties when the provision was adopted.
Applying those principles to the evidence submitted on the property leads the Board to conclude that this claim must be denied. The Carrier properly applied Rule 16 - Order of Call in the circumstances presented. Under the clear and unambiguous language of the NOTE to Item No. 4, the Claimant was not eligible for the overtime work on June 18, 2004. Had he worked the overtime, he would have Form 1 Award No. 38214
been unavailable to work his own assignment due to Hours of Service Act restrictions.
The Board recognizes that there is a dispute between the parties as to what was intended when items 1 through 4 of the Order of Call have been exhausted and there is still a vacancy. Under the prior Order of Call, there were eight steps instead of four, and the Claimant would have been eligible for the vacancy. The applicable step is no longer included in the revised Rule and its omission must be given its normal significance. Generally, the plain inference of the omission is that the intent to reject prevailed over the intent to include.
The Organization did not succeed in rebutting that inference. It argued that the parties reached an understanding governing the procedures to be followed when the Order of Call has been exhausted, but there is an evidentiary conflict on this particular point that cannot be resolved by the Board. We are compelled to find that the parties negotiated specific changes to the Order of Call which must be applied as written and any unwritten understanding must fail for lack of probative evidence. In the absence of Agreement language or a side agreement governing the procedures to be followed when the Order of Call has been exhausted, the Carrier can properly exercise its discretion to take the action it did in this case.
Based on the foregoing, it follows that the General Chairman was not misinformed or misled by the Carrier prior to blanking the 2nd Trick Portal position and combining it with the 2nd Trick Dakota position. The Claimant was not eligible for the vacancy under the Order of Call and the Organization failed to establish that an unwritten understanding changed that result. The claim must be denied.