Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9
SECOND DIVISION Docket No.
8923
2-CWP&S-CM-'82
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Chicago, West Pullman and Southern Railroad Company
Dispute: Claim of Employes:
1. That the Chicago, West Pullman and Southern Railroad Company violated
the terms and conditions of Rule
19
of the current working Agreement
when they furloughed Carman Frank Vranjkovic, Charles O'Brien,
Andrew Nowak , Kenneth Smoot, Gary Long and David Doud. Further, the
Railroad Company also violated the time limit provision of the
August 21,
1954
Agreement when they failed to give reasons for their
denial of the claim.
2. That the Chicago, West Pullman and Southern Railroad Company be ordered
to compensate the above named six
(6)
Carmen eight (8) hours pay each
at the pro rata rate of pay for each day commencing on March 28,
1980
and continuing through the required five
(5)
working days' notice as
required by the Agreement.
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.
In this dispute, the Organization raises the procedural point that the
Carrier failed to state a reason in its reply to the claim, as required by
Article V of the August 21,
1954
Agreement, which reads in part as follows:
"Should any such claim or grievance be disallowed, the carrier
shall, within
60
days from the date same is filed, notify whoever
filed the claim or grievance (the employee or his representative)
in writing of the reasons for such disallowance."
Such Carrier response included the following:
"On March 23,
1980,
this Carrier was notified by Wisconsin
Steel Works,-our largest customer that their plant,
immediately, would be shut down."
F orm 1
Page 2
Award No. 9005
Docket No.
8923
2-CWP&S-CM-'82
Under the circumstances, the Board finds that this statement meets the
requirement of Article V, even though it makes no specific reference to a
particular rule. While it may have found the reason insufficient, the
Organization was made fully aware of the basis for the Carrier's action.
The Organization states without contradiction that the Claimants (along
with all other employees, according to the Carrier) were furloughed with virtually
no advance notice.
Rule
19,
as amended, reads as follows:
"Effective July
16, 1962,
existing rules providing that advance
notice of less than five
(5)
working days 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.
The Carrier admits to not granting the required five days' notice but
defends its action based upon an undisputed total shutdown of its business
at the time under "emergency" conditions. There is no evidence that the Carrier
withheld notice to its employees for any period after learning of the cessation
of the need for its services.
The concept is reasonably founded that an "emergency" of the nature here
involved may abrogate a notice requirement. "Notice" implies a period of time
during which employees continue to work while facing reassignment or furlough.
Conditions in this instance made such period of continued work impossible of
fulfillment.
The Carrier cited no other basis for its action, but the Board finds this
sufficient to justify its action. The Board will not direct the enforcement
of a notice period when there appears to have been no way for it to be provided,
given the sudden and total cessation of the Carrier's business.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Ad:iustment Board_
By
jsema sch Administrative Assist
s,-lm rriee Brasch Administrative Assistant
Daterd at Chicago, Illinois, this 24th day of March, 1982
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division