Form 1 NATIONAL RAILR04 D ADJUSTMEfT BOARD Award. No. 8385
SECOND DIVISION Docket No. 8095
2-CMSt P&P-BK-' 80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( System Federation No. 76, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Blacksmiths)




Dispute: Claim of Employes:





Findings:

The Second Division of the Adjustment Board, upon the whole record and a1.1 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, 193+.

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



The salient question before this Board is the coordinative application of the May 1, 1976 Memorandum of Agreement. It is uncontested that Claimant, who was regularly assigned to the Davies Yard Rip Track in Milwaukee, was apprised before the close of work on September 27, 1977 that his job was abolished due to a force reduction. As such, he was eligible to exercise displacement rights .pursuant to Agreement Rules 27 and 31 and the terms of the May 1, 1976 Memorandum of Agreement and in fact, advised the foreman at the Milwaukee Forge Shop on September 28, 1977 that he wanted to displace a junior employee. The May 1, 1976 Memorandum of Agreement is referenced as follows:


Form l Award No. 8385
Page 2 Docket No. 8095 _,
2-CMStP&P-BK-'80
"I~;mplayees exercising displacement rights will do so within
five calendar days after being affected by force reduction
or job abolishment of position.
This Agreement is effective May 1, 1976 and shall remain in
effect until revised or annulled in accordance with the
procedures prescribed in the Railway Labor Act as amended,"

Carrier contends that he was denied immediate displacement right to this
position since he applied for it after the start of the shift and without
advanced notification. It argues that his late notification, if acceded to,
would be contrary to observable practice and administratively burdensome and
unfair to other employees. Claimant disputes this position and contends that
there is no Agreement language or practice requiring advanced notification.
He asserts that he applied for this position before the start of the shift.
In oar review of the Agreement Rules applicable to this case, namely
Rules 27 and 31 pertaining to Reduction in Force and Seniority, Claimant was
plainly eligible to exercise displacement when his position was abolished on
September 27, 1977. Our correlative analysis of the May 1, 1976 Memorandum of
Agreement does not reveal that advanced notification is specifically or for that
matter implicitly required, although, admittedly same form of controlled
administrative procedure would be desirable to facility orderly displacement
applications. In view of the parties diametrically opposite positions on this w
interpretative issue and the lack of any clear and verifiable implementing

standards, this Board mint judicaLly assess the applicable Agreement language, -

We concur with Carrier that advanced notification is administratively warranted to avoid needless confusion, but we do not find that it persuasively demonstrated that this was the accepted practice on the property. The second paragraph of the May 1, 1976 Agreement (Supra) simply requires that affected employees will exercise displacement rights, if they choose, within five calendar days after the force reduction or abolishment of position. It does not postulate some definable measure of advanced notification. If the employee does not exercise his displacement rights within five calendar days, he loses this opportunity for displacement employment. As an appellate body, we cannot disregard the .presence and force of clear and unambiguous language. We must give it its intended effect. We are not convinced by the record that this language was mutually construed and observed so that advanced notification was an integral and indisputable .part of this provision. We would be rewriting the Agreement.

Claimant's job was abolished on September 27, 1977 and he notified Carrier within the required five calendar days that he wanted to displace a junior employee. The May 1, 1976 Memorandum of Agreement is written in unmistakable and explicit language and we cannot give it a meaning other than expressed. We recognize, of course, than an intelligent administrative procedure would in all likelihood reduce personnel problems, but we cannot interpolate by judicial interpretation an advanced notification rules, that is not supported by the record. We will sustain the claim.
Form l Award No. 8385
Page 3 Docket No. 8095
2-CN1StP&P-BK-'80






                            By Order of Second Division


Attest: Executive Secretary
National Railroad Adjustment Board

By
R emarie Brasch - Administrative Assistant

Dated Chicago, Illinois, this 25th day of June, 1980,