Form 1
DisFute: Claim of Employes:
(Advance copy. `The usual printed copies will be sent later.)

NATIONAL RP.ILROAD ADJUSTMENT BOARD

SECOND DIVISION


The Second Division consisted, of the regular me:abers ar:d in addition Referee Ix-vrirr M.. Lieberman when award was rendered,

Parties to Dispute: ( -(Carmen)

Award No. 641,2
 Docket :do. 626'

That accordingly, the Missouri Pacific Railroad Company be ordered to compensate the carmen employes.listed below in the amount of eight,hours (8') each at the pro rata rate for each of the dates of May 19, 20, 21, 1971, and in addition to the money amounts claimed herein, the Carrier shall pay Claimants an additional amount of 6% per annum compounded annually on the anniversary date of the claim:

 2.

 CABMEN MECHANICS AFFECTED
Thomas F. Wilson
 Harry C . McKay
 Everett J. Vilmer
 Joseph G. Freer,-Jr.
 Gilbert L. Dugan
 George A . Akers
 William J. Westhoff
 Howard F. Whitehead
 Albert F. hiicke
 James B. Huskey
 Nowell 0. Wright
 Vernie L. McGee
 Brthur C. Ganninger
 Walter T. Johnston
 Ralph f. Sloan
 Gordon H. Redfield.,
 Harvey E. Masson
 Lawrence Maloney
 Manuel D. Johnson
 Floyd C. Oker

 Clarence K. Sansoucie
 Leo W. Hogan
 George H. Wayes
 Eli Huskey, Jr.
 Virgil L. Arbruster
 Walter D. Baker
 Carl J.. Hahn
 Bernard A. Westhoff
 Clarence 0. Taylor
 Charles E. Backof
 Lloyd E. Sapper
 Odis C. Keath
 Paul J. Pope
 Floyd L. Walten
 Harold D. Valle
 Sr. James H. Bowrisaw
 John D . Williams
 Edgar J. Sansoucie
 John E . Hammon
 Thomas J. Wilkinson

 Robert E. Coleman
 Robert L. Lovely
 Robert G. Armstrong
 Stanley F. Dugan
 Oscar W. Copeland
 Dale A. Bailey
 Eugene L. Brook
 Herman C. Woods
 Herman J. Koch
 James L. Lynn
 Sam L. Pknson
 Fred L. Wilson
 Thomas W. Yarbrough
 Robert N. Walker
 Carl A . Johnston
 Norman R. Sloan
 Edgar L . S ohn
 Robert C. Ames
 Walter G. Oker
 Arnold C . Wagner

~.ge

Carl F. Baisch William D. Boley, Sr. Edgar I. Rencehausen 0
 James L. Christopher Melvin E. Belfield Nicholas ,J. Thebeau
 LeRoy A. Mercer Charles E. Koch Claude B. Ballard III
 Marvin E. Kite Kenneth E. Spiker Lloyd R. Crews
 Herman W. Hayes Sloman J. Eye Gard D. Wright
 Alfred J. McKeever Chad F. Aubuchon Kenneth M. Boyer
 Albert J. Castello, Sr. Edwin L. Queen Joseph S. Battreal
 Joseph H. Clark Roy C. Marten Louis M. Jose
 Frederick A. Schlett Marvin W. J;nkerson Madison D. Baird
 James B. Stafford Clarence H. Wright Roscoe R. Johnson
 Milburn L. Wilkinson Claude B. Ballard Paul R. Secrets
 Roscoe A. Johnston Ralph R. Wagner Raymond T. Lewis
 Vivian L. Lewis Carlos D. McAnally Earnest E. Lucas
 Eugene H. Vilmer Shelby B. Apple Leonard I. Warden i
 Perry E. Prather Lawrence C. Record Robert J. Marier
 Edwin C . Wilkinson Delmar T . McMullin Douglas C . McMahan
 William I. McCuficheon William E. Spradline Harold J. Broombaugh t
 Joseph E. DeClue Robert J. Guenther Vernon H. Beck
 Joseph 0. Politte George F. Boyer Edward M. Wagner
 Irwin W. Shepard Donal 0. Tullock Leo W. Hancock.
 Thomas W. Sansoucie Robert L. Hammack Russell B. Brinley
 Johnny A. Price Harold L. Wickerham Lawrence L. LaHay
 Alfred J. Schlett Everett R. Brinley Harold E. Boyer
 Phillip D. Settlemoir Earl D. Johnston Fred A. Ross C
 Daniel J. Powers Golman D. Halter Clyde J. Boyer
 Ed·N-and E. Thebbeau George L. Howard Paul G. Hahn
 Orville R. Bone Otis L. Wilson Lambert A. Thebeau .
 Freeman Bailey

 CARMEN HELPERS AFFECTED
Sidney J. Wall
 Vern F. Zufall
 Earl E. Lewis
 John W. Missey
 Ernest f. Kyle
 Lindell E . Whaley
 Raymond A. Schillinger
 Ha,:ard T. Cheatham
 Jack A. Dearing
 Howard G. isgriggs
 David W. Lewis
 Berna::d T. Keller
 Donald Bailey
 Raymond C . Harris
 John J. Juliette

 Paul H: Roble
 Robert J. Koch
 Melvin M. Ycung
 Robert E. Terry
 Homer L. Couch
 Jesse E. Peacock
 William N. Henderson
 Raymond W. Johnston
 Gleanwood R. Hodge
 Floyd E. Burns
 Ralph H. Garrett
 Norman 0. Hardin
 Lloyd J. Danback
 Homer C. Isgrig
 Raymond. F^. Dierks

 PAINTER f~'.CHANICS AFFECTED
Walter M. Turner
 Julius S. Brown
 Jesse W. Isgrig
 Edward A. Kelzer
 Louis E. Hayes
 Omar L. Propes
 Orville E . Wilson
 Walter H. Huskey
 William H. Johnson
 Carl B. Airsman
 Joseph P. Kramer
 Homer L. Warden
 Jimmey D. Todd
 Paul E. Gilliam
 LeRoy Hampton

 T. H. Haverstick R. J. Govero C. R. Smith
 corm 1 Award. N0. 641,2
 'e 3 DockMPet - N- t 6269 -

        A. J. Grovero D. M. Wood C. E. Pratt

        J. H. Copeland R. J. Pashia M. J. Sanders

        L. J. Pinson W. 0. Littrell G. P. Franklin

        P.-Hammontree

        CARMEN APPRENTICES AFFECTED -


        M. E. Coleman D. P. Boyer . K. T. Schafermeyer

        J. R. Warden W. D. Boley,.Jr. D. T. Pratt

        D. D. Shunk G. R. Hardin D. E. Blanks

        W. E. Leftridge T. W. Sloan D. M. Richeson

        G. J. Rokan D. E. Klaus J. B. Moore

        T. 4. Hayes H. E. Pope J. E. Smith

        A* J. Castello, Jr. S. L. Levall G. L. Hawkins

        M. R. Ehrenberg R. J. Sansoucie R. E. Sanders

        L. C. McMahan J. L. McKee J. L. Mercer


Findings:

 The Second Division of the Adjustment Board, upon the whole record and. all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute ai_ respectively cari~ior and employe within the meaning of the Railway Labor Act as approved June 21, 19;4.

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

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


Claimants in this matter are 143 Carmen Mechanics, 45 Carmen Helpers, 3 . Painter Mechanics, 10 Painter Helpers, and 28 Apprentices employed regularly on the first shift at the Carrier's DeSoto, Missouri Shop. It should. be noted. that there are additional claims in behalf of employees represented by this Organization as well as employees of other crafts all employed at the three car shops of the Carrier; these claims are being held. in abeyance pending the resolution of this dispute.

 At 6 A.M. Monday, May 17, 1971, the Signalmen's craft went out on strike on a national basis; Claimants honored the picket line. Carrier's. operations were suspended totally at this location and in part at other locations. At 1 P.M. Tuesday, Mav :i.8, 1971, the Carrier pasted a notice in the shop temporarily reducing the force At about 11 P.M. May 18, 1971, the President signed. the .Joint. Congressional Resolution ending the dtrike. At 7 A.M.., May 19, the Claimants reported for ·rrork but were not permitted to return by the Carrier. After three working days, the forces were restored on Monday, May 24, 1971.
 Form 1 Award No. 641.2
 Page 4 Docket No. 6269

 The Rules relating to reduction in force go back to 1919 with numerous subsequent amendments and interpretations. Article VI'.of the August 21, 1954 Agreement became the basis for the current agreement language in Rule 21(b) as follows:

        "(b) If the force is to be reduced, four working days' notice will be gi5ren the men affected before reduction is made and lists will be furnished the general and local committees except no more than sixteen hours' advance notice is required before abolishing positions or making force reductions under emergency conditions such as flood, snow storm, hurricane, earthquake, fire or strike, provided the Carrier's operations are suspended in whole or in part and provided further that because of such emergency the work which would be performed by the incumbents of the positions to be abolished or the wo=k which would be performed by the employes involved in the force reductions no longer exists or cannot be performed."


        NOTE: If it is found necessary to close shops at Sedalia or DeSoto for j

        a certain number of days during the month this is permissible by serving as , I

        much advance notice as possible. During such temporary shutdowns sufficient

        number of men may be retained to take care of emergency work, such emergency

        force to work regular bulletined hours.,


This Rule was modified first by the June 5, 1962 agreement; Article III:-~btates:

        "Article III - Advance Notice Requirements


        Effective July 16, 1962, existing rules providing that advance notice of less than five (5) working da-,%Ts be given before the abolishment of a position or reduction in force are hereby revised so as to require not less than five (5) working days' advance notice. Vith respect to em-)' oyees yTorking on regularly established. positions where existing rules do not require advance notice before such position is abolished, not less than five (5) working delays' advance notice shall be given before such positions are abolished. The provisions of Article VI of the August 21, 1954 Agreement shall constitute an exception to the foregoing requirements of this Article.".-


A further change was negotiated in 1970 and embodied in Article II of the agreement signed April 24, 1970:

        "Article II - Force Reduction Rule


        Insofar as applicable to the employees covered by this agreement, Article VI of the Agreement of August 21, 1954 is hereby amended to read as follows:


        (a.) Rules, agreements or practices, however established, that require _ advance notice to employees before temporarily abolishing positions or making temiora_ry force reductions are hereby modified to eliminate any requirement for such notices under emergency conditions, such as flood,

                                                          c

Form 1 Award No. 6412
 ( '.ge 5 Docket No. 6269
 2-MP-CM-'72
 snow storm, hurricane, tornado, earthquake, fire or labor dispute other
 than as covered by paragraph (b) below, provided that such conditions
 result in suspension of a carrier's operations in whole or in part. It
 is understood and agreed that such temporary force reductions will be con
 fined solely to those work locations directly affected by any suspension
 of operations. It is further understood and agreed that notwithstanding,
 the foregoing, any employee who is affected by an emergency force reduction.
 and reports for work for his position without having been previously __
 notified not to report, shall receive four hours' pay at the applicable
 rate for his position. .
 (b) Rules, agreements or practices, however estbblished, that require
 advance notice before positions are temporarily abolished or forces are
 temporarily reduced are hereby modified so as not to require advance notice
 where a suspension of a carrier's operations in whole or in part is due to a
 labor dispute between said carrier and an-r of its employees.
 The foregoing amendment is effective April 24, 1970."

 The Organization claims that the emergency ended at 11 P.M. on May 18, 1971 and for Claimants to be furloughed, Carrier was obligated to give five days advance notice under Rule 21 (b) as amended by iirticle III of the June 5, 1962 Agreement. Pirst as to the emergency, we do not believe that a stroke of the pen can terminate
 ie state of emergency instantly; it normally would take some time to restore
 · irations. As an analagy, we do not believe that shut-dooan caused by an emergency -_.a to a blizzard or a flood, for example, ends automatically when the last snow flake has fallen or when the high water mark has passed. Furthermore it is clear that Article II (b) o° the April 24, 1970 Agreement is controlling in this situation, rather than Rule 21(b). It is evident that an advance notice of furlough to men already fan furleu.C;h is not provided for in any Rule.

 The crux of the natter is whether the Carrier had the right in this temporary reduction in force, unc7.er the provisions of Article II (b) of the 1970 Agreement, cited above, to recall its employees three days after the labor dispute (which caused the reduction in force) had been ended. In this case the Carrier stated unequivocall-v that: "This tcIf.DQT2..Y'y force reduction ser~d the purpose of reducing costs- is order to keep expenses in line with the reduce. revenues caused by the strike and permitted the orderly resurmtion of work in the shcps following restoration of normal operations of trains and oti?er services throughout the system.`

 We must disti.ngul.sh our findings in this case from our conclusions in Second Division Awards Hos. 2195, 2196 and 6112 since the events in those cases took place prior to the ?970 Agreement which is controlling 5n this case. As we said in Second Division f'Y-ard ho. 641., which parallels this matter, we are not empowered to change or re Write the Rules. We find that:

 1. The parties have put no lim.ta-ions upon the duration of a temporary force reduction in the Rule negotiated in 3.-,170. Such limitations are not unknoi-m in this
 idustry; for example in the Pratecti-.-a Agreement of February 1965 a provision exists
    ^qua.rina recall of employees tempora-ily laid-off upon the termination of the . ergency.

                                                          i


Form I Award No. 6412
 Page 6 Docket No. 6269
 2-MP-CM-'72

      2. Implicit in the Rule is good faith on the part of the Carrier. r,rf


      3. There is no evidence of vindictiveness on the part of the Carrier.


4. We do not believe that the reinstatement in this case was unreasonable or contrary to the Rule.

 Although we have no basis for questioning the motivation of the Carrier in this case, we must emphasize that we will not condone the punitive extension of any temporary lay-offs caused by strikes.

                        A W A R D


      Claim denied..


                        NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division


Attest:
          . G~ . f=. .

          Executive Secretary


Dated at Chicago, Illinois, this 21st day of November, 1972.

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