STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Boston & Maine Railroad,
(1) That the Carrier violated Articles IX and IV of the Telegraphers Agreement, and Notice and Order No. 1 and Notice of Instructions of Federal Manager C. H. Buford of Government Controlled Railroads of May 17, 1946, when, effective May 24, 1946, the Carrier declared abolished the positions of the claimants named in the following Employes' Statement of Facts and on the days specified therein, because of the strike of the engineers and trainmen commencing on May 24, 1946, and has refused to pay these claimant employes their wages for the day or days on which they were improperly suspended from work during their regular hours; and
(2) That each of the claimants named in the Employes' Statement of Facts who were thus improperly deprived of their usual employment by the Carrier on the day or days specified by being improperly suspended during their regular hours and who were ready for service and not used, shall be reimbursed for the wage loss on the day or days specified as a result of this improper act of the Carrier.
EMPLOYES' STATEMENT OF FACTS: An agreement bearing date August 9, 1944, as to the rates of pay and rules of working conditions Is in effect between the parties to this dispute.
Due to a threatened strike of the engineers and trainmen on the Boston & Maine Railroad the United States Government took possession, control and operation of the Boston & Maine Railroad effective 4:00 P. M., May 17, 1946, by means of the following quoted Notice and Order No, 1:-
"Employee will not be required to suspend work during regular hours or to absorb overtime."
"(a) Employee will be advised within five (5) days of all permanent vacancies or new positions covered by this agreement by notice sent to each office, stating hours of service, days per week and salary. * * * *"
"* * * The Carrier used language in the two telegrams the effect of which was to cancel and abolish the positions. However, the question remains, did the Carrier actually or in fact cancel or abolish the positions? If, as evidenced by its subsequent conduct, it is apparent that the Carrier did not actually consider the positions abolished, then the positions were, in fact, in existence and the employes regulaxly assigned thereto would be entitled to pay under Rule 29 paragraph nine of the effective agreement."
"We therefore come to the conclusion that the Carrier, by its actions and conduct, never actually considered it had abolished these positions and we find in fact it had never done so. The incumbent employes were simply suspended and held in readiness, subject to call, to return to their positions. During this period they were regularly assigned employes to the positions and, under Rule 29, paragraph nine of the effective agreement, entitled to be paid:"
bulletining of such, and this is essential to the establishment of new positions. None of these positions were bulletined. The fact that the Carrier did not give Claimants a chance to exercise their seniority also supports the conclusion that the positions were not abolished.
If the positions were not abolished they must have been suspended. Article IX of the Agreement provides that "Employes will not be required to suspend work during regular hours or to absorb overtime".
But the Carrier contends that the exception to the Guarantee Rule (second paragraph of Article IV, quoted above) exonerates it here- In Award 3701 an exception to the Guarantee Rule involved in that case provided that "if commercial or other conditions change materially the company reserves the right to abolish an office or reduce the force without notice, to conform to such modified conditions". There this Board, in regard to that provision, said: "However, the abolition of jobs must be bona fide under any circumstances to meet the requirements of the Agreement". Concerning the part of the exception, in the present case, which states, "nor where traffic is interruped or suspended by conditions not within the control of the Railroad," the Board believes that the condition in question here was not sufficiently beyond the control of the Carrier to entitle it to come within the scope of the words "conditions not within the control of the Railroad". Without being more specific, such conditions are normally thought of as being Acts of God, Acts of Providence or Acts of Nature.
The Carrier has indicated that the Employes' Statement of Facts included in the list of Claimants some emplyes who were not supposed to work on the days involved; of course such employes do not have a claim and nothing is due them from the Carrier.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Claims sustained, to the event of requiring the Carrier to reimburse those Claimants who would have worked on the days when they were improperly suspended, for the wages lost.