Brotherhood of Railva9, Airline sad Steamship Clerks, Fieigbt Bandlera, Express and Station Fuployes PARTIES 1V DISPUlg:

S1'ATHiEN1' OF CLAN: Clain of the System Committee of the Brotherhood
 ' (GL-9466) that:


















                        M. J. Garrett 34000, Roadmaster Clerk

                        B. R. Wyett " 33300, Yard Clerk

                        D. L. Booth 33310, Yard Clerk

                        J. Murphy 33320, Yard Clerk

                        L. D. Anderson Relief Clerk

                        L. L. Fister 72140 Relay OPT.

                        R. Jackovich Protected Employs

                        J. Shafer 91

              Award N=ber 24449 Page 2

              Docket Nunber CL-24214


      Portsmouth C. Klein 28750, Agent

      Redfield A. D. Woodford 32700, Agent

      Rockwell City R. DeWald 31650, Agent

      Tama H. Reinier 27600, Agent

      Mendota - 42059, Agt.-Opr.

      Albert City R. L. Bentley 31750, Agent

      Amana A. Lockridge 30800, Agent


Cedar Rapids R. Jeuhriag 88360, Rev.Clk-Gr.A
 M. Symond 88410, Bill & Exp. Clk
 G. Teachout 88460, Keypunch Opr-Clk
 J. Dougherty 88470,
 J. Barlon 88510, Cashier
 R. aotZ 88520, Lsst. Cashier
 J. Kelsey 88840, Rev.C1k-Gr. A
 D. M. Buff 88900, Keypunch Opr-Clk
 L. Dougherty 88910, Rev.Clk-Gr.B
 J. Claypool _ 88920, Rev.Clk-Gr.B
 D. Peyton 88930, Rev.Clk-Gr.B
 J. o. Green . 88940, Bill & Ezp Clk
 C. M. Buff 889$0, Rev.Clk-Gr.A
 A. J. Hood 88960, Rev.C1k-Gr.A
 - 16926, Agent
 03350, Pzt. Serv. 7asp.
 E. L. MxIlickle 33800, Chief Yd Clk
 J. Kennedy 33810, Yard Clerk
 E. Papesh 33820, Yard Clerk
 K. Slater 33830, Yard Clerk
 6. Atkinson 33860, Yard Clerk
 - 33870, Yard Clerk
 B. Kula 1 , Relief Clerk
 J. Schloeman 2 , Relief Clerk
 F. Canady 27040, Yard Clerk
 Clive E. Schleisman 32600, Agent
 Coon Rapids - 28500, Agent
 Des Moines JoAnn Bucher 10810, Chief Clerk
                    Avard Number 24449 page 3

                    Docket Number CL-24214


        Council Bluffs C. Ziegenhorn 22870, Warehouse Foreman

        M. E. Jensen 33600, Yard Clerk (Ch)

        N. Rice 33610, ch Yard Clerk

        D. Larsen 33620, Ch -fa=d clerk

        R. Bardman 33630, Yard Clerk

        R. Rodenburg 33640, Yard Clerk

        R. Bonar 1 , Relief Clk

        - 2 , Relief Clk


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


          3) The Carrier shall be required to compensate ail those employer who were displaced by employer whose positions were abolished an additional eight (8) hours pay at the rate of their assigned position, or their protected rate, whichever is the greater, for November 1, 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.


OPINION OF BOARD: This claim protests Carrier's abolishment on October 30,
 1979, of fifty-nine bulletined positions without providing five working days' notice to the affected employees. The Organization maintains that failure to give such notice violates Rule 32 of the Agreement. It see'cs appropriate compensati abolition of the positions in question. 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 Rule 72(a). Carrier also raises certain procedural objections to the filing of the claim which are discussed below.

 On December 19, 1977, Carrier filed a petition for reorganization under the Federal Bankruptcy Act, 11 U.S.C. 9205. Pursuant to that petition, Judge Thomas R. Mddillen 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 approximately eighty per cent of Carrier's lines. On June 1, 1979, the Co;=t 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 Noverfoer 1, 19790 In addition, the Cou-rt'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.
                    Award Number 24449 Page 4

                    Docket Number CL-24214


Accordingly, o5 October 26, 1979, Judge MB~:illen 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 Cnica o Milwaukee St. Paul and Pacific Railroad Co., Nos- 79-79-177 79-1675, 79-1 33, 79-1 b( 7th Cir. Opt. 2, 1979 , rr Is aMMi oitDMED teat:


          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.


          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 of the Debtor's property or the finalization, approval and implementation of a plan of reorganization." (9nphasis supplied.)


On October 30, 1979, Mr. L. W. Harrington, Carrier's Vice President - Management Services issued a memorandum addressed to "Employes Affected by Force Reduction" in which he advised the recipients that as a result of the Court ordered embargo of certain Ydlwaukee Road lines their positions "may be affected by force reduction effective November 1, 1979."

 Also on October 30, 1979, Mr. J. W. Stuckey, Division Manager issued a notice to the occupants of fifty-nine positions at a number of Carrier's facilities. The notice provided, in relevant part, that:

        "In view of the U. S. District Court-directed embargo of certain Milwaukee Road Lines, your position is abolished effective 11:59 p.m. (C.S.T.), October 31, 1979 under the emergency force reduction provision of your union contract. This will confirm verbal advice given you in this regard."


As a result of Cxrier's action, the Organization filed the instant claim on December 12, 1979 with Mr. D. W. Schultz, Assistant Division Manager - Administration. It was den 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.
                    Award Number 24449 Page 5

                    Docket Timber CL-24214


        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

        emergency conditions such as flood. snow storm, hurricane,

        tornado, earthquake, fire or labor disoute 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 af

        fected by an emergency force reduction and reports for

        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 furnished to the local

        and general chairman. Such bulletin notice shall include

        the names of employes filling the positions abolished of

        the time abolished." (fphaais supplied.)


In the Organization's view, Rule 72 (a) is clear and unambiguous in that employes whose positions are abolished must be given five (5) working days' notice of such abolishment except for the emergency circumstances listed in the rule. Obviously, the Court 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 as emergency even if other events not listed in Rile 12 (a) are deemed
 to constitute emergencies. This is so because Carrier was well aware as of
 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 Car
 rier did not give proper notice of the abolishmeats resulting from the embargo order.
                    Award Number 24449 Page 6

                    Docket Number CL-24214


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 co_oies of the abolishment notices to either its local or general chairman.

 Accordingly, the Organization seeks additional eight hours compensation for the incumbents of th 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 were the claim to be sustained as to monetary damages. Carrier notes that the Agreement does not provide for penalty payment. Therefore, for this Board to award monetary damages where none in Carrier's view, that this Board would be modifying the provisions of the existing Agreement. Clea subtract or in any way, modify those provisions. Accordingly, Carrier concludes that this Board is without jurisdiction to order any monetary damages in this case.

 Second, Carrier asserts that to the extent the claim asks for compensation for unnamed in names of certain individuals by a check of payroll records, it is invalid. Carrier points out that I 3 of the claim seeks compensation for "those employes who were displaced by employes whose positions were abolished" (Emphasis sapplial.) The Organization adds, under Item 3 that "the employes ...displaced by employes whose positions were abolished (arej to be determined by joint check of payroll and other necessary records."

 Chrrier further notes that in Item 2 of the claim seven of the fiftynine individuals whose posit identified only as follows:

              " Manilla - Position 33500, Yard Clerk

              Mendotta - Position 42059, Agt.-Opr.

              Cedar Rapids - Position 16926, Agent

              Cedar Rapids - Position 03350, Frt. Serv. Insp.

              Cedar Rapids - Position 33870, Yard Clerk

              Coon Rapids - Position 28500, Agent

              Council Bluffs - Position 2, Relief Clerk

                    Award Number 24449 Page 7

                    Docket Number CL-24214


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


Carrier maintains that Item 3 of the claim is invalid in that it seeks compensation for individuals who are both unnamed and unknown. Rule 36 of the Agreement requires that "all of the employes involved." Thus, according to Carrier, where the claim is presented, as here, on beh
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 the extent that Items 2 and 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 72 (a )1. Carrier notes that the list of emergencies in that rule i that "flood, snow storm, hurricane, tornado, earthquake, fire and 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 a 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)i. Furthermore, Carrier notes that the Interstate Commerce Commission has specifically recognized that
Thus accoring to Carrier, the embargo order of the Federal Court clearly was an emergency within the meaning of Rule 72 (a )l. As such, Carrier was not obligated to give fiv 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 of this case are virtually identical with those in Award Ho. 24446, decided herewith. The rationale for our decision is set forth in great detail in that case. There we decided that as to Carrier's procedural objections, a monetary award is not a penalty payment. Furthermore, we concluded that to the extent Items (2) and (3) of the claim referred to unnamed or unidentified individuals, t readily indentifiable. Thus, all fifty-nine employees referred to in Item 2 of the claim are proper Claimants, while Item (3) is deemed invalid.
                    Award Number 24449 Page 8

                    Docket Number CL-24214


As to the merits, we concluded in Award No. 24446 that wader the facts of that case, as here, the Court ordered embargo on October 26, 1979 did not constitute an emrgency as defined by Rule 12 of the Agreement. Furthermore, we found that each of the Claimants had received one day's advance notice of the abolishment of his or her position.

        Accordingly, for the reasons set forth above and in Award No. 24446..

we will award each of the incumbents of the positions listed in Item (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, up to a maximum of four days' pay. Thus Items (1) and
 (2) of the claim are sustained to the extent indicated in the Opinion. Item (3)
 of the claim is denied.

        FDIDINGS: 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 sustained in accordance with the Opinion.


                              NATIONAL RAILROAD ADJUS MENTSOARD

                              By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

                    _ lel~l.\ `yr0"~


                                                    ~r


        Rosemarie Brasch - Administrative Assistant


0~\GY

 Gh~co9° Dated at Chicago, Illinois, this 29th day of June 1983.