(Brotherhood of Railway. Airline and Steamship Clerks,
 ( Freight wand's, Express and Station Employes
 PARTIES To DISPUTE:
 (Chicago, Milwaukee. St. Paul and Pacific Railroad Company

(1) Carrier violated the Clerks' Rules Agreement in Seniority District No. 1 when it arbitrarily reduced forces by abolishing positions starting at 11:59 p.m.., February 29, 1980 and continuing to April 18, 1980 without giving the employes affected thereby "not less than rive (5) working days advance notice" nor did it issue a standard permanent abolishment notice until April 18, 1980.

 (2) Carrier shall now be required to compensate all employes affected by the temporary suspension of their positions an additional eight (8) hours pay at the rate of their assigned. position which was abolished, or at their protected -ate, whichever is greater, starting either on March 1, 1980 or on the date their respective positions were temporarily abolished, and for each workday until their positions were permanently abolished as of 11:59 p.m. April 18, 1980.



(3) Carrier shall be required to compensate all those employer who were displaced by employes whose positions were temporally abolished as shown in Attachment A, an sdditicooal eight (8) hours pay at the rate of their assigned positions, or their protected rate whichever is greater, starting either on March 1, 1980 or on the date they were affected, and for each workday until April 19, 1980.

                        eocret smbn m.2h236


OPINZ.ON OF HOARD: This claim, brought by the Organisation, challenges as a
 violation of the Agreement the Carrier's failure to give
 five working days advance notice to employes in Seniority District No. 1 of
 the abolishment of their positions on February 29, 1980. The Carrier responds
 that it vas not required to give notice. The facts are not in dispute.

 On February 25, 1980, the United States District Court,, 'in proceedings for reorganization of the Milwaukee Railroad (the Carrier), granted the Trustee's request for an esbargo of certain Ptilvaukee lines. The Court's Order (No. 290-A) is relevant to this dispute in two basic respects: It directed the Trustee to embargo all specified traffic as of 1.1:59 PJ4., February 29, 1980. It further directed the Trustee to furlough employes specifically as follows, in pertinent part (paragraph 6):

        "As of 11:59 P.M., February 29, 1980, or as soon thereafter as is practical, the Trustee shall furlough all employees not required far the services and operations continued under this Order ... the Trustee shall pay all furloughed employees for services performed up to the date of furlough at the rate at which payments vere actually being made prior to the date of furlough, shall make payments required by Paragraph 7 (out of specified fords) and shall provide medical and denial protection to furloughed non-uniad emloyess in accordance with the Debtor's exist V5aderscoriag added.)


On February 26, 1980, the Carrier posted "emergency" force redu&ion notices to all employees in the Seniority District abolishing 33 specified positions, effective 11:59,P.M., February 29, 1980. The notice listed each position by position atmber and title. The positions were perrmanently abolished on April 18, 1980.

 In a letter dated April 28, 1980, addressed to J. C. Manders. ManagerAccounting Administration, the Organization's General Manager set basic claim now before us. The claim alleges a violation of Rule 12(a) of the Clerks' Agreement by failure to give employees affected by the abolishment advance notice of not less tbsa five voesdag days. It seeks compensation for two categories of employees: Those whose positions were abolished (Item No. 2) and those who were displaced by employees whose positions were abolished (Item No. 3).

 A list of positions and of the Mmes of incumbents in the first category is attached to the claim. The claim requests that positions and occupants not listed be det Monetary payment for first category employees is sought for the period from the date of taaparary abolishment on February 29, 1980, to the issuance of a standard permanent abollgbment notice effective April 18, 1980.

 For the individuals in the second category, i.e., those displaced, it asks that their names and the monetary wage due them be determined "by joint check of payroll and other necessary records."
                        Award Number 24440 Page 3

                        Docket lfudber CL-24236


The Carrier opposes the claim on both procedural and substantive grounds. Its procedural arguments., in essence, are directed to the jurisdiction of this Board. At t timeliness by Rule 36 of the Agreement. Rule 36 -provides 3n pertinent part:

        ·(a) A11 claims or grievances must be presented in xritiisg by or on behalf of the employe involved. to the officer of the Carrier authorized to receive same within sixty (60) days from the date of the occurrence on which the claim or grievance is based." (Underscoring added).


According to the Carrier, "presented" means "received." Thus., since Mr. Msmlers did act receive the claim until April 30, 1980, which was 61 days after February 29 1980, the date of the embargo, it is barred from consideration and must be denied in its entirety. The Carrier cites a number of awards in support of its position.

 The other procedural arguments urge that the ft-quest for payment to "unknavq and 1·rn"^ed" individuals has no valid basis in the Agreement and is in fact inconsistent with the requirement of Rule 36, that claims must be presented "by or in behalf of the employe i=volved."

 The Carrier maintains further that there is no compelling contractual support for the request for a joint check of the carrier's records for the purposes specified in both items.

 Reserving its position on jurisdiction, the Carrier nest addresses the merits of the claim. It defends the failure to give five working days notice of the job abolishment an the ground that the Court-ordered embargo created 'emergency conditions" within the meaning of the exception described in Rule 12(x).

        The exception eliminates from the scope of the rule:


        ".., any requirement for such notices under emergency conditions,

        such as flood, snow storm., hurricane, tornado, eaxthqoakc, fire

        or labor dispute (e-dispute involving the employees of another

        employer) .... · ...


In the Carrier's view, the "such as" enumerations are intended only as some emaples., not as an exhaustive definition, of what is meant by "emergency conditions." The Carrier sees a similar example in the embargo because it oceoaed at a specified tim a specific day, in order to avert a state of csshlessness.

 The carrier also points to a finding of the Taterstate Commerce Commission (in a service order f exists "due to a threatened or existing embargo."
                      Award Nusber 24440 Page 6

                      Doebet fiaber cs.-24236


The Organization responds that no emergency within the intendment of the Rule 12(a) exception could be found to exist. This is so, it says, because the word "embargo" is not expressly mentioned in the-exception and because,, in nay event, the particular facts do not establish the existence of an emergency under the exception.

      We deal first with the procedural issues.


On the threshhold issue of timeliness, we conclude from a study of Rule 36 and a review of cited awards that the term "presented", as used in the rulep does not have a clear and unambiguous meaning.

 Mae rule itself carries no definition, nor does it offer any helpful guidance as to what meaning the word was intended to have. Thus, the word "presented" is not used consistently in this and other parts of the rule to describe how a claim is effectively initiated. For example, at some points the word "filed" appears to be used interchangeably with "presented"p although the two words might be said to have different m·a"_.~s elsewhere in the rule.

 Awards cited by the Carrier do not, in our opinion.. resolve the ambiguity. They do not reflect or reasonably should mesa. For exuiple, one award expressly found it to mean "received by the Carrier". Another award.. however, implies that the claim was

 "presented" when -written. The primary focus of other cited awards appears to be on questions not present in the instant dispute., such as the appropriate official to be addressed, the continuing nature of the violation, or the date of the triggering event.

 For these reasons., we have considered it advisable to take a good fresh look at Rule 36 at this time.

 The recognized purpose of a negotiated grievance or complaint procedure is to vindicate rights a in mind that purpose,, we deem it to be sound labor-relations policy that doubts as to the precise boundaries of time limits which shut oft access to those procedures should, in general, be resolved against forfeiture of the rights sought to be vindicated.

 Guided by that policy and by common business practice.. we conclude that a fair and reasonable reading of the rule is that a properly addressed claim is effectively "presented" when delivered to the U.S. mails. (Williston on Contracts. Third Edition; Restatement of the Law. Contracts 2d.). This holding is in no way intended to relax the time limits themselves.
                      Award Number 24440 Bnge 5

                      Hoeket Number CL-24236


We do not accept the Organisation's view that the claim was effectively presented merely by the It must be shown that the letter was placed in accepted channels of commuaioation. We note the fact aA bears an earlier certification number than a similar letter also dated April 28, 1980, (covering another seniority district) which was actually received by the Carrier on April 29, 1980. Accordingly, we find that the claim before us was delivered to the U.S. mails on the day it was written, April 28, 1980, and that it was effectively presented at that time.

 We conclude that the claim was timely filed and that it is not barred from our consideration.

 As to whether the claim has been validly made in behalf of unnamed employees, we note that the list of positions and names submitted by the Organisation reflects a diligent effort on its part to make a precise identification of the claimants in the first category whose positions were abolis Others in that category who were not named have been adequately identified as possible occults on February 29, 1980, of the positions listed in the attachment submitted by `.he Organization. Their identity can be from the records in the Carrier's possession, and it is altogether reasonable to allow a joint check of the records. (See Rational Disputes Committee Decision 4). Such clearly identifiable individuals are presumed to be properly included among those in whose behalf the Organization, which represents them, has brought this claim (Rule 36, pa.-agraph 4). If they have wrongfully suffered monetary loss by reason of any violation of the notice requirement as to them, they should be appropriately compensated.

 As to the unnamed incumbents of unlisted positions in the first category (Item f. 2) and as to all those in the second category who may have been displaced (Item No. 3). we find differently. The record affords no ready or reasonable guidance as to who these individuals may be, or whether they exist at all. To direct the Carrier to ferret out and supply such essential information to the Organization would unfairly shift to the Carrier the Organization's responsibility to investigate and build its own case in the 60 days which the Agreement allows it for that purpose.

 Such unknown individuals therefore are not presumed to be included among those in whose behalf the Organization has brought this claim. It would be unreasonable, moreover., to extend to them the benefits of any compensatory award. See: Third Division Award 21135. We will dismiss the claim as it relates to them.

      We turn to the merits of the dispute.

                Award Humber 24440 page

                - Docket Number CI-24236


The narrow question for resolution is whether, as the Carrier contends, the embargo as such created "emergency conditions" under the 12 (a) exception, relieving the Carrier of the five-day notice obligation. On the record before it, particularly the terms of District Court Order No. 290-A, the Board concludes that the embargo did not create such an emergency.

 Rejecting the Organization's restricted reading, we agree with the Carrier that the "such as" phrase is simply an enumeration of examples, not an exhaustive definition. We do not agree, however, that an embargo as such constitutes an emergency under the exception.

 As numerous decisions of this Board have recognized from the examples listed, the key to the existence of a Rule 12 (a) emergency is the sudden, unforeseeable, and uncontrollable nature of the event that interrupts operations and brings-them to itself typically that kind of event. In the instant situation, for example. Order No. 290-A plainly shows that the Trustee sought the embargo. The embargo did not overtake him. for reasons of grave business concern. It did not partake of the essential characteristics common to the listed examples.

 The Carrier's bare reference to seven isolated instances of abolishment of a single position at each of various locations is inadequate, in our opinion, to establish an accepted rule on this property that an embargo constitutes an emergency condition under the exception.

 Nor can we consider the emergency provisions of the Interstate Commerce Commission statute to be controlling for purposes of the exception to Rule 12 (a) of the negotiated agreement. The term "emergency", as used in that statute in connection with a threatened or existing embargo, has a special meaning specifically associated with ICC Service Order No. 1399, citing 141E Supp. 576.

 Even if we were to assume that a court-ordered embargo generally creates an emergency under the Rule 12 (a) exception, we could nevertheless not find on the record before us that the particular embargo of February 29, 1980, had that effect. Looking at the Court order, we note that: It did not impose an absolute obligation on the Trustee to furlough employees at the same time as the embargo of traffic. If circumstances required him to wait beyond the time of the embargo, he could furlough employees "as soon thereafter as is practical."
              - Avard.amAer 24448 Pale 7

                Docket 1uaber c3,-24236


It is the Board's opinion upon a close reading of the Order's paragraph 6 that the need to fulfill the five-day notice obligation may reasonably be viewed as the kind of circumstance that made it necessary to postpone the date of furlough.

 Paragraph 6, which deals in its entirety with the matter of furloughs, reflects the Court's concern for the relevant interests of affected employees. While it makes special pirovision for the protection of certain interests of "non-union employees", it makes no reference at all to "union employees." It is altogether reasonable to infer from the scope and focus of the order that the Court vas aware of the Carrier's relevant special obligations toward "union employees" and believed them to be adequately protected by applicable negotiated agreements. There is no hint of an intent to override those obligations. It is thus reasonable to infer further that the Court allowed time for the Carrier to discharge those obligations when it used the phrase, "as soon thereafter as is practical."

 Indeed, in its rebuttal statement, the Carrier has acknowledged the practical impossibility of giving no less than five working days' notice in advance of the embargo. It has not explained, however, why it did not take the additional time authorized by the Court to abolish the positions and furlough the employees. . Accord1 91y, for all the foregoing reasons, we conclude that the embargo
 did not constitute an emergency condition under the 12 (a) exception and that the
 Carrier violated the rule by failing to give the employees properly encompassed
 within the claim no less than five working days advance notice of the abolish
 ment of their positions. We will sustain Item 1Po. 1 of the claim. We turn
 now to a consideration of the remedy appropriate '-_o the violation found.

 It appears that none of the employees properly included in Item Bo. 2 received the required number of notice days, although some apparently were given greater notice than others. Each employee is accordingly entitled to be compensated for each working notice, at the rate of his/her protected rate, whichever is greater.

 These payments are plainly remedial, for they compensate the employees for work they would have performed had they been given the requisite notice. indeed, the Court's order clearly implies that they shall be paid for those days at that rate. The Carrier's "penalty" argument is simply not applicable here.
 Award Number 244$0
 Docket Number G7-24236

 Page 8

 There is no valid basis., however., in the Agreement or in the Court's order or in the nature of the violation found., for the Organisation's request that affected employees be paid for all days not worked until the standard permanent abolishment not denied insofar as it relates to other than the five days of required notice of the force-reduction abolishment of their positions.

 As already stated, unnamed incumbents of unlisted positions in Item No. 2 and.employees referred to in Item No. 3 are not entitled to any remedy.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence finds and holds:


That the parties waived oral hearing;

 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

 That the Agreement was violated.

 A W A R D
Claim disposed of in accordance with the Opinion.

 NATIONAL RAILROAD ADJUSZNT BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary
 National Ftailroed Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago Illinois, this 29th day of June 1983