(1) The Carrier violated the effective Agreement and established practices thereunder when it abolished the positions of Foreman J. D. Harris and Apprentice Foreman A. J. Carroll `other than at the end of the month' (October 1964) and failed and refused to compensate them at the respective monthly rates of pay through out the month of October. (Carrier's Files MW-3144 and MW-3142)
(2) (a) Foreman J. D. Harris and/or any employe he may have affected through the exercise of his seniority will be paid the difference between the rate of pay of his regular assignment as of September 30, 1964 and what he earned in a lower pay-rated classification for the month of October, 1964.
(b) Apprentice Foreman A. J. Carroll and/or any employe he may have affected through exercise of his seniority be paid the difference between the rate of pay of his regular assignment as of October 2, 1964 and what he earned in a lower pay-rated classification for the month of October 1964.
(3) The Carrier further violated the effective Agreement and established practices thereunder when it abolished certain other monthly-rated positions "other than at the end of the month" (December, 1964) and failed and refused to compensate those affected thereby at their respective monthly rates of pay throughout the month of December, 1964. (Carrier's Files MW-3146, MW3147, MW-3150 and MW-3152).
(4) Each employe hereinafter named and/or any employe affected through the exercise of his seniority be paid the difference between the rate of pay of their regular assignment as of November 30, 1964 and what they earned in a lower pay-rated classification for the month of December, 1964.
EMPLOYES' STATEMENT OF FACTS: The claimants were all regularly assigned to their respective monthly rated positions at the time said positions were abolished. Their assigned work weeks extended from Monday through Friday (Saturdays and Sundays were rest days).
The rule controlling this dispute (Rule 7-a) provides that not less than five (5) working days' advance notice shall be given before positions are abolished. Nonetheless, the Carrier abolished all of the positions here involved without giving the claimants such required advance notice.
In accordance with Rule 7, Reduction and/or Increase of Force, of the agreement, Mr. H. L. Rose, Engineer-Maintenance of Way, issued on November 25, 1964, the usual and customary notice of force reduction, stating that effective with the close of work Monday, November 30, 1964, positions were abolished on all extra gangs, section gangs, bolt tightening machine gangs, rail welders and assistants, division carpenter gangs, bulldozer, crane, dragline operators, and T&S Gang No. 1, Columbus Division. This force reduction is the usual and customary procedure for the Holiday Season for time immemorial. In not counting the date of the letter notice, November 25, this meant that the employes involved only received three days' notice. Therefore, each man involved was paid an additional two days' pay of 8 hours each at his last straight time rate of pay in lieu of five days' notice.
The correspondence concerning this claim covered by Carrier's File MW-3152 is hereto attached marked Carrier's Exhibits 6-A through 6-1.
The claimants in each of these six claims either exercised seniority over employes junior to them in the service, and thus continued working on jobs paying as much or more in some cases and less in other cases; some elected to take their annual vacations and were paid in October or December, as the case may be, for all vacation earned in the previous calendar year; some who could have continued working elected to become furloughed and draw unemployment compensation from the Railroad Retirement Board; a few were recalled to work due to emergencies which occurred; and, a few did not have sufficient seniority to continue work by the exercise of seniority. In any event, the force reduction was of short duration. Those jobs abolished effective November 30, 1964, were re-established in January, 1965, for example.
The Brotherhood has failed in all handlings of these six separate and distinct claims on the property to cite a rule, interpretation or practice which gives them what they demanded in the claims handled on the property. As a matter of fact, there is nothing in the agreement to support the new or conglomeration of amended claims appealed to your Board for adjudication. The claims have no semblance of merit.
The rules and working conditions agreement between the carrier and its employes represented by the Brotherhood of Maintenance of Way Employes is effective September 1, 1949, as amended. Copies are on file with your Board and the agreement, as amended, is hereby made a part of this dispute as though reproduced herein word for word.
OPINION OF BOARD: A review of this record reveals that six claims were initiated and handled up to and including the highest officer of the Carrier designated to handle such disputes. Upon presentation to this Board, these six claims were combined, and it is because of this that Carrier contends the claim before us has been amended to such an extent that it constitutes a substantial variance from those which were processed on the property. Carrier therefore argues that the instant claim should be dismissed.
The original six claims have been combined and submitted to this Board in different language and in a different format. The claim, as we now have it, has not been enlarged, but has been lessened in certain respects. In our judgment, the changes made are not sufficiently substantial to warrant us to dismiss the claim. We disagree with Carrier's position on this procedural ground, and in recognition of this, we will proceed to a consideration of the substantive issues presented.
The employes aver that Carrier did not give them five (5) working days' notice when a Reduction in Force notice was issued, as contemplated by paragraph (a) of Rule 7-Reduction and/or Increase of Force, and revised by Article Ill of the National Agreement dated June G, 1962. We agree with the Employes on this point, and Carrier, as evidenced by the record, has admitted their error and have compensated the employes accordingly. However, by complying with the five (5) days' notice, Employes have been extended into the following month. The effective date of the reduction, rather than being in September, as in the first instance, is in October. The Employee contend that Carrier has violated paragraph (a) of Rule 7, the pertinent portion of which reads:
We agree with the contentions and arguments of the Employes. The above cited language is clear, precise and unambiguous. We will accordingly sustain the claim as presented.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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 Employee 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