Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6614
SECOND DIVISION Docket No. 6480
2-L&N-CM-' 74
The Second Division consisted.of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 91, Railway Employes'
( Department, A: F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
. ( Louisville and Nashville Railroad Company
Dispute:- Claim of Employes-.
1. That the furlough of Carmen Helpers J. D. Roberts, C. C. Johnson, and
G. D. Whiting effective March 1, 1972, without notice, was in violation
of the current agreement, and
2. Accordingly, the Louisville and Nashville Railroad should be ordered
to additionally compensate them for five (5) days each (40 hours)
at the pro rata rate of pay.
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
are 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
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants went on vacation on February 21, 1972, in accordance with the
vacation schedule which had been posted on or about January 1, 1972. The vacations
ended on March 3rd, and March 4th and 5th were rest days for all three claimants.
On February 24, 1972 a notice was posted on the bulletin board furloughing a number
of employes, including claimants, effective March 1, 1972. When claimants reported
for work on March 6th they were advised for the first time that they had been
furloughed effective March 1st.
Petitioner contends that Claimants were not given the five working days
advance notice of furlough provided in the rules, and hence should receive five days
compensation. Rule 26 (b) provides:
"If force is reduced, 5 working days advance notice will be given
the men affected by bulletin before the reduction is made. Notices
will indicate seniority dates, names and classification of employes
affected with copy to the local chairman."
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Form 1 Award
No. 6614
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Petitioner argues that the history of the earlier agreements lends support
to the thesis that it was the intent of the parties that an employee TAIDuld be ;given
an advance notice of five working days or more before he would be furloughed. It
is argued further that Carrier knew full well that the Claimants were on vacation
but made no effort to notify them. Petitioner states that it has no knowledge of
any similar occurrence over the thirty years that this provision has been in the
Agreement. Carrier argues, however, that for the past forty years furlough notices
have always been bulletined and that this is the established practice. There is
no evidence of any prior analagous circumstances and their handling.
The Organization cites Awards
4395
and 5513 in support of its position. We
note that in both of those Awards the rule specifies that four days notice will be
given before a force reduction, but in neither case is the method of notice given;
in the instant case the notice is to be by bulletin. However in those Awards, as
well as in our Award 3690, we indicated that the purpose of the notice was to inform
the employe and that the purpose of the notice should be functional not merely
technical.
Carrier cites Award 2274 which states:
"We think the rule contemplates the seventy-two hour notice may be
posted at any time and will be effective as to all employes affected
thereby whether they are, at the time, either off or on duty."
Even though it is not specified by Petitioner, we assume that the type of .
notification required by their position would be some type of mailed notice to the
Claimants homes. Such type of notification is provided for in Rule 26 (g) dealing
with recall notice. Contemplation of such a notification procedure raised as many
questions as it answers; possibility of employes on vacation being away and not
receiving their mail is but one of many such questions. Further, when a furlough
involves a number of employes, as it frequently does, serious damage to seniority
rights are possible when notice may be determinative of furlough dates. Further we
are not impressed with Petitioner's argument that the language of Rule
26
(b) may
be construed to mean written notice to individuals affected.
We are certain that the parties intended that effective notice to employes
be accomplished by bulletined notices. It is also probable that the parties (lid not
contemplate the circumstance of an employe being on vacation when a furlough notice
was to be posted. It would be highly desirable for such an event to be provided
for by modification of Rule 26 (b); we have neither the power nor wisdom to mmike
such changes in the Agreement - that must be accomplished by the parties at the
bargaining table. (See Awards
19961,
19239 and 18604).
For the reasons cited above and the fact that clear language of the Rule
in question has not been violated, the claim must be denied.
Form 1
T..,..,e
3
AWARD
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By-2..c_~-,-t. e-, ~-z~
I-,
Rosemarie Brasch -`Administrative Assistant
Dated at Chicago, Illinois, this 8th day of January, 1974.
Award No. 6614
Docket No.. 6480
2-L&N-CM-`' 74
NATIONAL RAILROAD ADJIJSTMEN7' BOARD
By Order of Second Division