(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, 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 nineteen (19) positions effective 11:59 P·m., October 31, 1979 without giving the employes affected thereby "not less than five (5) working days advance notice" nor did it issue a standard abolishment notice as required.

 2) Carrier shall nosy be required to compensate all employes affected, an additional eight (8) ' for November 1, 1979 and for each workday until they were returned to service.
























                  Docket .Dumber CL-24212


3) Carrier shall be required to compensate all those employes who were displaced by employes whose positions were abolished, an additional eight (8) hours pay at the rate of their assigned position, or their protected rate whichever is greater, 1979 and for each workday until they were returned to service.

            NOTE: The employes and monetary wage due those employes displaced by employes whose positions were abolished to be determined by joint check of payroll and other necessary records.


OPIZON OF BOARD: This claim protests Carrier's abolishment on October 31,
 1979, of nineteen bulletined positions without providing five working days' notice to the affected employees. The Organization maintains that the failure to 12 of the Agreement. 'It seeks appropriate compensation for the incumbents of those positions as well as compensation for other employees displaced by the incumbents as a result of Car Carrier defends on the grounds that the abolition occurred as a result of an emergency, thereby obviating the need for any notice to the affected employees, pursuant to Rile
On December 19, 1977, bier filed a petition for reorganization under the Fed=eral Bankruptcy Act, 11 U.S.C. ®205. Pursuant to that petition, Judge Thomas R. McMillen of the United States District Court-Eastern Division appointed Stanley E. G. Hillman, and later Richard B. Ogilvie, as trustee. On April 23, 1979, Trustee Hillman petitioned the Court to institute an embargo over approrimately eighty per cent 1979, the Court denied the Trustee's embargo request.

 On August 10, 1979, the Trustee filed a second petition with the Court seeking an embargo of certain of Carrier's lines as of October 1. 1979. On September 27, 1979 the Court ordered the embargo, effective November 1, 1979- In addition, the Court's denial of the Trustee's first petition was reversed by the U. S. Court of Appeals for the Seventh Circuit on October 2., 1979.

 Accordinglyo on October 26, 1979., Judge McMillen issued order No. 220C. That order directed Richard B. Ogilvie as Trustee of the Chicago Milwaukee, St. Paul and Pacific Railroad Company (Carrier) to embargo Carrier's freight operations on certain of its lines effective 12:01 a.m. (C.D.T.), November 1. 1979. The Order reads, in relevant part:

        "In accordance with order No. 220A dated September 27, 1979, this Court's decision dated the same date, and the decision of the Court of Appeals for the Seventh Circuit in In Re Chip o Milwaukee, St. Paul and Pacific Railroad Co.., Nos. 79-

                  Award Number 24447 Page 3

                  Docket Number CL-24212


        "79-1675, 79-1683, 79-1693 (7th Cir. Oct. 2, 1979),

        IT IS HEREBY ORDERED that:


          "1. Richard B. Ogilvie, as Trustee of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company is directed to embargo at 12:01 a.m. C.D.T., on November 1, 1979 all of the Debtor's freight operations on lines which are not shown on Appendix A, either as solid or dotted lines, nor listed on Appendix B, or Appendix C.

                          ~ ~r s


          5. As of November 1, 1979 or as soon thereafter as is practical, the Trustee shall furlough all employees not required for the services and operations continued under paragraph 1 or for the administration of the estate, the protection of the Debtor's property or the finalization, approval aqd implementation of a plan of reorganization." (Emphasis supplied.)


On October 30, 1979, Mr. L. W. Harrington, Carrier's Vice PresidentManagement Services issued a memo Force Reduction" in which he advised the recipients that as a result of the Court ordered embargo of certain Milwaukee Road lites their positions "may be affected by force reduction effective November 1, 1979."

 On October 31, 1979, Ms. D. L. Friese, Assistant Manager Placement Service, issued a notice to "the occupants of the following positions:

              Position #15930 - Rate Analysis Clerk

              Position #15940 - Rate Check Clerk

              Position #15910 - Rate Analysis Clerk

              Position #17000 - Rate Clerk

              Position #15950 - Rate Clerk

              Position #15900 - Fate Analysis Clerk

              Position #15640 - Rate Analysis Clerk

              Position #15580 - Chief Rate Analysis Clerk

              Position #15600 - Rate Analysis Clerk

              Position #16000 - Tariff Compiler

              Position #16010 - Tariff Compiler

              Position #16600 - File Clerk

              Position #16040 - Chief File Clerk

              Position #09440 - Tracing and Reconsigning Clerk

              Position #09040 - Clerk

              Position #16640 - Stenographer

              Position #15710 - Stenographer

              Position #48870 - Steno/Clerk

              Position #04020 - Perishable Services Clerk "

                  Award Number 24447 Page 4

                  Docket Niunber CL-24212


        The notice provided, in relevant part, that:


        "In view of the order of the U. S. District Court and resultant embargo of certain Milwaukee Road Lines, your position is abolished effective 11:59 P.m. (C.S.T.), October 31, 1979."


As a result of Carrier's action, the Organization filed the instant claim on December 12, 1979 with Mr. J. C. Manders, Manager Accounting Administrations. It was denied handled in the usual manner on the property, whereupon it was appealed to this Board for adjudication.

 The Organization contends that the Carrier's abolition of the above referenced positions violates the Agreement between the parties, particularly Rule 12.

        Rule 12 reads, in relevant part:


        "Rule 12 - Reducing Forces


        (a) In reducing forces, employes whose positions are to be abolished will be given not less than five (5) working days advance notice except:


          1. Rules, agreements or practices, however established, that require advance notice to employes before abolishing positions or making force reductions are hereby modified to eliminate any requirement for such notices under emer- gency conditions such as flood, snow storm, hurricane, tornado, earthquake, fire or labor dispute other than as covered by subparagraph 2 below, provided that such conditions result in suspension of a carrier's operation in whole or in part. It is understood and agreed that such force reductions will be confined solely to those work locations directly affected by any suspension of operations. It is further understood and agreed that notwithstanding the foregoing, any employe who is affected by an emergency force reduction and repor work for his position without having been previously notified not to report, shall receive four hours' pay at the applicable rate for his position. If an employe works any portion of the day he will be paid in accordance with existing rules.


        (c) When bulletined positions are abolished, notice will be placed on all bulletin boards in the seniority district affected and a copy of same will be furnishe general chairman. Such bulletin notice shall include the names of employes filling the positions abolished at the time abolished." (&iphasis supplied.)

                  Award Number 241447 Page 5

                  Docket Number CL-24272


In the organization's view. Rule 12 (a) is clear and unambiguous in that employees whose positions are abolished must be given five (5) working days' notice of such abolishment except for the emergency circumstances listed in the rule. a "flood, snow storm, hurricane, tornado, earthquake, fire or labor dispute." Thus, the Organization asserts that it is not an emergency under Rule 12(a).

 Furthermore, according to the Organization, the embargo cannot be considered an emergency even if other events not listed in Rule 12 (a) are deemed to constitute emergencies. This is so because Carrier was well aware as or September 27, 1979 that its lines would be embargoed on November 1, 1979, unless the Court of Appeals reversed the District Court. Also, the Organization contends that on October 26, 1979, the date of Judge McMillen's final order, it advised Carrier's representatives that they would be in violation of the Agreement if Carrier did not give proper notice of the abolishments resulting from the embargo order.

 Additionally, the Organization argues that Carrier's actions in this dispute violate Rule 12(c), second paragraph. That clause requires that when all bulletined positions are abolished, "notice will be placed on all bulletin boards in the seniority district affected and a copy of same will be furnished to the local and general chairman." Rule 12 (c) is explicit and allows for no exceptions. Thus, the Organization contends that Carrier violated the rule when it failed to send copies of the abolishment notices to either it
Accordingly, the Organization seeks additional eight hours compensation for the incumbents of the ab 1979 and each work day thereafter until they were returned to service (Item 2 of claim). Additionally, the Organization asks that all employees displaced by those holding the bulletined positions listed above be similarly compensated (Item 3 of claim).

 Carrier, on the other hand, both denies that any violation of the Agreement exists and raises two procedural objections to the form of the claim. First, Carrier insists that even if a violation of the Agreement is proven, any award by this Board granting monetary damages would be in the nature of a penalty and, absent clear language authorizing penalty payment, violative of the Railway Labor Act. In Carrier's view, the Organization is seeking sums of money for certain employees for work they did not perform. Thus, these employees would be receiving a windfall and Carrier would be burdened with a penalty wer Carrier notes that the Agreement does not provide for penalty payment. Therefore, for this Board to by the employees involved would mean, in Carrier's view, that this Board would be modifying the provisions of the existing Agreement. Clearly, the Board does not have the authority to add to, subtract or in any way, modify those provisions. Accordingly, Carrier concludes that this Board is without jurisdiction to order an
                  Award Number 24"7 Page 6

                  Docket Number CL-24212


Second, Carrier asserts that to the extent the claim asks for compensation for unnamed individuals or to the extent that it seeks to ascertain the names of certain individuals by a check of payroll records, it is invalid. Carrier points out that Item 3 of the claim seeks compensation for "those a to s who were displaced by employe whose positions were abolished Elaplusis supplied.) The Organization adds, under Item 3, that "the employes ...displaced by employes whose positions were abolished (are) to be determined by joint check of payroll and other necessary record
Carrier further notes that in Item 2 of the claim two of the nineteen individuals whose positions were abolished are not named. Rather, those two are identified only as follows:

                    "---Position #16640 - Stenographer

                    ---Position +04020 - Perishable Service Clerk


          Where occupant of positions are not listed, same to be determined by joint check of Carrier's records."


terrier maintains that Item 3 of the claim is invalid in that it seeks compensation for individuals who are both unnamed and unkno Agreement requires that "all claims or grievances must be presented in writing by or on behalf of the employes involved." Thus, according to Carrier, where the claim is presented, as here, on behalf of unknown and unnamed individuals, it must be dismissed.

 In addition, Carrier argues that absolutely no schedule rule and/or agreement between the parties provides for a joint check of Carrier's records to determine the names of individuals allegedly aggrieved. Thus, it is Carrier's position that to th 3 require such a check to ascertain the names of aggrieved individuals, they are similarly invalid.

 As to the merits of the dispute, Carrier contends that the embargo ordered by Judge McMillen on October 26, 1979 clearly constitutes an emergency of the type contemplated by Rule 12(a)1. Carrier notes that the list of emergencies in that rule is labor dispute" are only examples of the type of emergencies which may occur.

 In Carrier's view, a court ordered embargo, to begin at a specific time on a specific date constitutes an emergency of the utmost magnitude. In fact, according to Carrier, on at least seven prior occasions the parties to this dispute have recognized that an embargo constitutes an emergency, thereby allowing for temporary position abolishments under the provisions of Rule 12(a)l. Furthermore, Carrier notes that the Interstate Commerce Commission has specifically recognized that embargoes and even threatened embargoes constitute emergencies.
                  Award Number 24447 Page 7

                  Docket Number CL-24212


Thus, according to Carrier, the embargo order of the Federal Court clearly was an emergency within the meaning of Rule 12(a)1. As such, Carrier was not obligated to gi nineteen positions as a result of the embargo order. Therefore, Carrier asks that the claim be denied on its merits as well as on procedural grounds.

 Both parties have cited numerous awards of this Board in support of their respective positions.

 The relevant facts in this dispute are identical to those in Award No. 24446, decided herewith. Our rationale is set forth in great detail in that case. There we decided that as to the procedural issues, an award of money damages would not be a penalty payment, as contended by Carrier. We also concl 3 of the claim must be dismissed. However, we further found that the unnamed though otherwise iden of Bulletined Positions No. 16640 and 04020 are proper Claimants under Rule 36 of the Agreement.

 As to the merits of the dispute, we concluded in Award No. 24446 that under the facts of that case, as here, the Court ordered embargo of October 26, 1979 did not constitute an emergency within the meaning of Rule 72. Thus, Claimants were entitled to five days' advance notice of the abolition of their positions.

 Here, Claimants were informed on October 30, 1979 that their positions "may be affected by force reduction effective November 1, 1979," h is true that the specific holders of the positions involved were not informed until the next day, October 31, 1979, that their positions would be abolished. However, the October 30, 1979 notice was sufficiently explicit and detailed as to apprise employees who might be affected by the embargo of their rights and alternatives under the Agreement. Thus, we conclude that Claimants did, in fact, receive one day's advance notice that their positions would be abolished.

 Accordingly, for the reasons set forth above, as well as in Award No. 24446 we will award each of the incumbents of the positions listed in Item No. 2 of the claim eight hours' pay at the rate of his or her assigned position or protected rate, whichever is greater, for November 1, 1979 and for each day until he or she returned to service, un to a maxim= of four days' na`. Thus, Items (1) and (2) of the claim are sustained to the extent indicated in the Opinion. Item (3) of the claim is denied.

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


        That the parties waived oral hearing;

                  Award Number 24"7 Page 8

                Docket Number CL-211212


That the Carrier and the Bnployes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21y 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 sustained in accordance with the Opinion.


                        NATIONAL RAILROAD ADJUSMIT BOARD

                        By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

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

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