~''rm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No 6611





                  Department, A. F. of L. - C. I. 0.

Parties to Dispute: (Carmen)

                  St. Louis-Southwestern Railway Company


Dispute: Claim of E1zployes:
            1. That the Carrier violated the terms of the current agreement when bulletin dated July 26, 1971, abolishing two carmen assignments and two carmen help apprentice assignments and bulletin dated July 28, 1971, abolishing one ca:

    . man assignment and one carman helper apprentice assignment, posted at Texa

          kana, Texas, did not provide for five working days advance notice as requi

          by the rules of the current controlling agreement.


            2. That the Carrier be ordered to compensate Carman Gene Ward, sixteen (16) hours, Carmen Helper Apprentices George Robinson,. thirty typo (32) hours, ii. R. hich oio, thii ty tw'O (32) hours, n. v. a_si tee t, th:irly 4ivo k jG) avurs and R. D. Nichols, thirty two (32) hours at the pro rata rate.


F ti~gs

 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 employee involved in this dispute a-, respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

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

        Parties to said dispute waived right of appearance at hearing thereon.


The Organization in this dispute alleges that Carrier violated the Agreement b· abolishing Claimants' positions by bulletins dated July 26 and July 28, 1971 without fiv( working days advance notice. The circumstances in this matter relate to the selective series of strikes by the United Transportation Union, some of which began on JiiLy 16th and others began on July 24 and July 30th. This Carrier, although not struck, promulgated certain rule changes unilaterally on July 16th (simultaneously with many other darriers). These rule changes were contained in Carrier's Section 6 Notice which had been served about November 7, 1969. The national labor dispute was settled on August 2, lA71 with a resumption of activity on the struck lines following, and a restoration of tl (`.loyees involved herein to their former assignments.

        Carrier relies on the provisions of Article II of the April 24

                                  , 1970 Agreement, m

Form 1 Award No. 6611
 ,Page 2 Docket No. 6467
 2-SLSW-01--' 74

 claiming that because of the labor dispute Claimants were not entitled to advance notice. Article II provides:

        " ARTICLE II - FORCE REDUCTION RULE


        Insofar as applicable to the employes 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 temporary force reductions are hereby modified to eliminate any requirement for such notices under emergency conditions, such as flood, 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 carriers operations in whole or in part. It is understood and agreed that such temporary force reductions will be confined 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 established, 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 any of its employees."


Carrier repeatedly asserts that there was a labor dispute between Carrier and its employees, but has not substantiated that thesis. Certainly the filing of a Section 6 notice and continued negotiations do not fulfill that requirement_ Under the language of Article II (a) the emergency condition of a labor dispute may be defined as the culmination of disagreement resulting in either a strike or lockout, or conditions approximating such work stoppages. Since there was no evidence of a work stoppage affecting Carrier, the provisions of Article II (b) do not apply. Article II (a) specifies that force reductions caused by emergencies including labor disputes (not involving Carrier's employees) "... will be confined solely to those work locations directly affected by any suspension of operations". On the property Carrier presented absolutely no evidence that the work at the point Claimants were employed was affected in any way by the work stoppage on feeder lines or strikes at any other Carrier. Carrier attempted in its submission to rectify this omission by presenting certain new information: it is well established that new evidence not presented on the property cannot be considered when the matter is reviewed by the rd (See Awards 19623, 11939, 12388, and 16061).
    Form 1 Award No. 6611

    ,,Page 3 Docket No. 6467

    2-SLSW-CM-'74

    Carrier contends that the issue in this docket has already been decided in

      a series of Awards. Awards 6411, 6412, 6431, 6473, 6475, and 6513 all deal with

      circumstances in which the Carrier's own employes were on strike and other employes

      were furloughed - complete cessation of operations were involved. The instant

      case is clearly quite different. Award 6462 resulted in a denial without prejudice

      based on this Board's inability to interpret law, such functions being reserved to

      the courts. Awards 6482, 6483 and 6514 all involve the suspension of all activities

      due to a strike on other carriers; clearly distinguishable from this case. In Award

      6560 we found that the requirements of Article II were satisfied through a suspension

      in part of the Carrier's operations, caused by fewer cars and trains being inter

      changed with a struck railroad. Such evidence is absent in this case. It snould

      be noted, however, that the burden is upon Carrier to establish that reduced operations

      which may be interpreted to be a suspension of operations in part, are directly

      attributable to the work stoppage ("labor dispute") and not other causes.


      In this dispute, Carrier has not produced evidence to demonstrate that Article II is applicable. Claimants were entitled to five working days advance notice as provided by the rules of the Agreement. There was no emergency involving this Carrier, insofar as this record is concerned.


                              A WA R D


:; Claim sustained.
 NATIONAL RAILROAD ADJUSTMENT BOARD
 . By Order of Second Division

      Attest: Executive Secretary

            ,National Railroad Adjustment Board


      B ~- ~'t.Ck: . c. ~~

      osemarie Brasch - Administrative Assistant


          Dated at Chicago, Illinois, this 8th day of January, 1974.


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