Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10766
SECOND DIVISION Docket No. 10363
2-B&O-CM-'86
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(The Baltimore & Ohio Railroad Company
Dispute: Claim of Employes:
1. That the Baltimore & Ohio Railroad Company violated the terms of
the controlling Agreement, specifically Rule 24, when on the date of July 20,
1982, claimants herein, Carmen at Washington, Indiana, were subjected to and
placed in furloughed status without being provided and afforded their
contractual right to a 'five working days advance notice' of such furlough.
2. That this claim be considered as a running and/or continuous
claim until such time as claimants contractual rights to the 'mandatory' 'five
working days advance notice' of furlough is appeased and adhered to.
3. That Carrier be ordered to compensate each of the following
claimants for eight (8) hours per day, five (5) days per week at the straight
time rate in effect from the date of July 20, 1982, up to and including the
date of resolution of this dispute, and additionally, that claimants be made
whole for any and all benefit losses they may have suffered as a result of
such arbitrary furlough and still further, that they be made whole for any and
all additional monetary losses, i.e., overtime, etc: Claimants: Robert
E.
Clark, Eugene Matteson, Ralph R. McCool, James A. Mahan, Kenneth Purcell,
Richard D. Potter, John D. Clements, Robert A. Beaman and James
E.
Winiger."
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 employes 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 July, 1982, under a systemwide reduction of force, the Carrier
reduced its forces at Washington, Indiana. The Carrier posted a Notice of
Force Reduction that stated to be by authority of Rule 24 of the Controlling
Agreement. The bulletin was posted on July 13, 1982 and stated:
Form 1 Award No. 10766
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"Effective Tuesday, July 20, 1982, 7:00 A.M., the
following positions are abolished. Employees
effected will be governed by provisions of Rule
24. "
The bulletin then listed the names of the nine junior Carmen who are the
Claimants here.
The argument is made by the Organization that the notice was
improperly given and was violating the Rule, hence a Claim is made for
continuing liability of the Carrier. The argument of the Organization is
centered on the grammatical construction of the Rule. The Rule, at Section
24(b) states in pertinent part:
"Five working days' advance notice will be given to
employes affected before the abolishment of
positions or reduction in force..."
The argument is that five working days' notice must be given if there is an
abolishment of positions _or five day's notice must be given if there is a
reduction in force. Because Carrier's notice only addressed the abolishment
of positions, the Claim is that another five days' notice must be given
because of the reduction in force. This argument is further buttressed by
Rule 24(j) which states:
"Except in cases of emergency force reductions as
covered by Section (b) (2) and (b) (3) of this
rule, the following STANDARD FORM will be used to
' notify all concerned of position abolishments and
force reductions."
The argument here is that the standard form is to be used if either position
abolishments or reductions in force are to occur, essentially the same
construction given to 24(b).
The Organization argues that the listing of nine positions for
abolishment with the names of the incumbents does not serve the purpose of the
notice requirements for reductions in force.
The five working days can be read as modifying either the necessary
notice for the abolishment of positions or for the reduction in force. The
Carrier points out that it can have an abolishment of positions and not have
to furlough any employees. This could happen if jobs were being reassigned or
work duties were being redefined within the context of the Agreement. In such
a situation it would be incumbent upon the employee whose position had been
abolished to keep abreast of the bulletin board to be able to exercise his
seniority to bid on a new position or to exercise his seniority to bump into a
Form 1 Award No. 10766
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position if so qualified. In the situation of a reduction in force, the
effected employee would be wise to keep abreast of the bulletin board to see
if there were any vacant positions on which he could bid or whether there were
junior employees whose positions he could bump onto.
A significant difference in the two situations, abolishment of
positions and reduction in force, could be that in the latter there will be
more effected employees than there are positions. Naturally this will mean
that the junior employee(s) will have nowhere to bid or to bump. In either
circumstance the five day notice provision will serve the same purpose, the
purpose of alerting the effected employee to the fact that his position will
be abolished. If the announcement is for a reduction in force, the senior
employees will not be effected. The junior employee will be effected in
either case and to him it makes no difference if the cut comes from abolition
of his position or from a diminution of the active work force because he will
be bumped in the latter case. The senior employee will only be effected if
the position he occupies at the time of the announcement is to be abolished.
The Carrier in this instance announced that the positions of the
junior employees would be abolished. It named the incumbents of those
positions. The effect on the Claimants would have been the same if the
Carrier had announced that a reduction in force of the their number would be
made.
Collective bargaining contracts must be scrutinized with a rule of
reason. Those charged with the interpretation of such Agreements must be
careful to uphold the meaning of the provision. Since the posting of the
positions to be abolished completely filled the intent of the Rule, we must
find that the requirement of a redundant posting of a notice that the force
would be reduced by an exact number would serve no purpose. We find that the
posting of the abolition of the junior positions complied with the Rule.
The Carrier pointed out to us that the predecessor Rule to the
current Agreement contained a provision that required individual notices to
the effected employees. This provision was changed through negotiation,
effective March 1, 1980, to the present Rule which eliminated the need to
individual notice.
Based upon these reasons we will deny the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
ancy J. D er Executive Secretary
Dated at Chicago, Illinois, this 5th day of March 1986.