Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9268
SECOND DIVISION Docket No. 9009
2-TRRAofStL-EW-'82
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Brotherhood of Electrical Workers, AFL-CIO
Part
ies to Dispute:
( The Terminal Railroad Association of St. Louis
Dispute: Claim of Employes
:
1. That the Terminal Railroad Association of St. Louis violated the Force
Reduction and Job Abolishment - Rule 22 of the April 1, 1945 controlling
agreement as amended in Article III - Advanced Notice Requirements of
the National Agreement signed June 5, 1962 when they denied proper
notice to Electrician J. W. Anderson, Sr. placing him in furloughed
status, August 23, 1979, and, further violated the rule when the
Local Committee was not furnished a list of the affected employes.
2. That, accordingly, The Terminal Railroad Association of St. Louis
be ordered to compensate Electrician J. W Anderson, Sr., eight
(8) hours at the straight time rate for five (5) day work week
commencing Saturday, August 25, 1979 and continuous.
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.
There are certain facts that should be noted as background. In 1978, two
employees in the B&B department left the service of the Carrier. Mr. H. B. Godrick
resigned on March 17, 1978, C F. Hofer retired October 16, 1978 and E. G. Jesel
retired November 1, 1978. On December 7, 1978, Employee M. J. Gibson was assigned
to the Hofer position. On April 10, 1979, Jesel's position was advertised and Gibson
was assigned. The Claimant was assigned to the vacancy created when Gibson moved
from the position formerly held by Hofer to the position formerly held by Jesel. It
is important to note that employee Godrick was not replaced. On August 17, 1979,
the Carrier issued the following bulletin:
"
Bulletin No. 606
To A11 Concerned
Effective with the close of work Thursday, August 23, 1979,
the B&B Electrical forces under Electrical Foreman, J. W.
Shoemake will be reduced by one (1) Electrician, working
Form 1 Award No. 9268
Page 2 Docket No. 9009
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"hours 8:00 A.M. to 4:30 P.M., Monday through Friday.
H.L. Vines
Supt. Bridges and Bldgs.
HLV:bns
cc: Mr. D. G. Davis, General Chairman
Mr. Geo. E. Smith, Asst. General Chairman
Mr. J. R. Bowman,"
Subsequent to the bulletin, the Carrier verbally notified Electrician Gibson that
he was the affected party and he was advised to exercise his seniority accordingly.
The Claimant was bumped by Mr. Gibson and furloughed.
Essentially, the Organization argues that the Agreement was violated
when the Claimant was furloughed, for two reasons. First, the notice of August 17
does not specify or name any affected employee. Second, the Agreement was violated
when the Claimant was furloughed because when he was furloughed there still remained
one vacancy in the B&B electrical force (presumably the position vacated by Godrick
approximately 17 months before). The Organization believe that an employee can only
be placed in a furloughed status when the Carrier no longer "provided within their
force a position upon which the employee can place." The fact that, in their
opinion, an open position existed at the time of furlough establishes that the Claimant
should have been allowed to fill it. The fact that he was not establishes that he
was improperly furloughed.
The Carrier argues that the~fact that the three electricians retired
during the calendar year 1978 and were not replaced by the addition of a like number
of employees has no bearing on this case whatsoever as it did not violate any agreement
provision or practices. Regarding the issue of notice, the Carrier points out in
their submission that the practice followed in the instant case is consistent with
past practice between the parties for at least 38 years. Moreover, in this regard
they argue that electrician Gibsonwas properly notified of the force reduction.
After considering the evidence, it is the decision of the Board that the
Carrier has not violated the Agreement. The Organization alleges that the Agreement
was violated for two reasons. One, that there was a vacant position at the time of
the Claimant's furlough and two, that the notice did not specify the individual
affected. The Organization's arguments regarding these reasons are not persuasive.
First there is-nothing in the rule relied upon by the Organization either in an
expressed or implied sense which would require the Carrier to fill a position that
had been vacant for 17 months in order to avoid the Claimant's layoff. There is
nothing in the Agreement provisions cited to us which would require the Claimant
to fill the position which was vacated many months before. If the Organization
wishes to establish a rule violation then they must convincingly establish that the
Carrier's procedure is clearly prohibited by the expressed language of the Agreement
or by past practice. There just simply is no language in this Agreement which requires
the Carrier to do what the Organization says they must. The only caveat in the Agreement
regarding the Carrier's right to abolish positions are the notice requirements of
Rule 22 and Article 3. Second, it is our decision that proper notice was given.
The Carrier's argument on past practice are convincing that an individual need not
be named in an abolishment notice. Moreover, the Claimant is not required to receive
five days notice as it was not his position being reduced. The Board has previously
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Page 3 Docket No. 9009
2-TRRAofStL-EW-'82
stated that similar contractual provisions and facts that advance notice is not
required to an employee who is subject to seniority displacement and subsequently
furloughed.
In summary, it is the conclusion of the Board that the Organization has not
fulfilled its burden of showing that the Carrier violated provisions of the Agreement.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By ,. '-
marie Brasch - Administrative Assistant
::td at Chicago, Illinois, this 28th day of July, 1982.