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)
(
( Chicago, Milwaukee, St. Paul & Pacific Railroad Company
Dispute: Claim of Employes:
1. That, in violation of the current agreements, the Carrier improperly
and unjustly withheld Blacksmith A. J. Magnuson from service when on
September 28, 1977 it denied him his contractual right to exercise
seniority by displacing a junior employee.
2. That accordingly, the Carrier be ordered to compensate Blacksmith
A. J. Magnuson at the prevailing rate of pay for eight (8) hours
on September 28, 1977.
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.
Parties to said dispute waived right of appearance at hearing thereon.
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:
"As between the undersigned, it is agreed that when forces are
reduced or job abolished, employees affected may place themselves
according to their seniority, provided they are qualified to perform
the work of the position.
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
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
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,