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


I) Carrier violated the Clerks' Rules Agreement in Seniority District 7 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 five (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 rate, 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 employes who were displaced by employes whose positions were temporarily abolished as shown in Attachment A, an additional 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.


OPINION OF BOARD: In this claim the Organization asserts that the Carrier
 violated the Agreement by failing to give five working
 days advance notice to employees in Seniority District No. 7 of the abolishment
 of their positions starting on February 29, 1980. The Carrier responds that
 it was not required to give advance notice.
            Award Number 24536 Page 2



The positions were abolished under a court-ordered embargo issued onFebruary 25, 1980 (Order No. 290-A). The background and provisions of the order are described in detail in the Board's opinion in Award 24440 relating to employees in Seniority District No. 1 represented by the Organization.

 The attachment to the claim shows the following facts as ascertained by the Organization: Most of the positions in claim were abolished by Carrierdesignated "emergency f February 29 and April 9, 1980. The positions were permanently abolished as of April 18, 1980.

 The claim letter was dated April 28, 1980; was sent by certified mail; and was received on April 30, 1980.

 This claim is identical in basic respects with that made in Award 24440. It alleges a violation of Rule 12(a) of the Clerks' Agreement by an asserted failure to give "not less than five (5) working days advance notice" to affected employees of the abolishment of their positions of the "emergency force reduction" notices. It seeks compensation until the date of permanent abolishment, for all those affected and appends a list of the positions and of the names of some incumbents (Item No. 2). It seeks similar compensation for those who were displaced by employees whose positions were abolished. It also requests a joint check of Carrier records to identify unnamed employees under Items No. 2 and No. 3.

 The Carrier's response is also identical in all essential respects to that submitted in Award No. 24440. Stated in broad terms its challenge to the claim is that (1) it is time-barred under Rule 36; (2) it is invalid as to unnamed and unidentified employees; (3) it improperly seeks a joint check of the Carrier's records; and (4) it makes an improper request for compensation in the nature of a "penalty".

 Beyond the jurisdictional-procedural arguments, the Carrier defends the substance of its action on the ground that it was relieved of the advance notice obligation because the court-ordered embargo created "emergency conditions" within the meaning of the exception to Rule 12(a). On thorough analysis of the record before it, and for the reasons fully stated in Award No. 24440 the Board finds as follows:

 1. The claim is not barred under Rule 36, as it was "presented" in timely fashion. It is reasonable to assume from its certification number that it was mailed simultaneously with a similar timely claim relating to another seniority district.

 2. Unnamed employees have been adequately identified as occupants of the positions listed in the attachmnent to the claim. They are deemed included in Item No. 2 of the claim and are entitled to be appropriately compensated for any monetary loss they may have suffered by reason of any violation of the Rule 12(a) notice requirement to them. It is reasonable to allow a joint check of the Carrier's records to ascertain their identity.

                                  79-

                      Award Number 24536 Page 3

                      Docket Number CL-24241


3. Individuals who assertedly may have been displaced by employees whose positions were abolished are not adequately identified and are not deemed to be included in the claim. They are not entitled to any compensatory award, and a joint check of the Carrier's records to find and identify them is unwarranted. The claim as to them (Item No. 3) must be dismissed.
4. The exception to Rule 12(a) does not apply to the facts presented, as no emergency has been shown to exist under the exception. Accordingly the Carrier violated Rule 12(a) by failing to give employees properly encompassed within the claim no less than five working days notice of the abolishment of their positions. Item No. 1 should be sustained.
With respect to the remedy appropriate to the violation found, for the reasons fully stated in Award 24440, the Board concludes as follows:
1. Each employee deemed in finding numbered 2, above, to be included in the claim who received less than five working days advance notice of the abolishment of his or her position is entitled to be. compensated for each working day, up to five days, for which he/she was not given such notice, at the rate of his/her assigned position or at his/her protected rate, whichever is greater.
2. There is no rational basis for compensating all employees whose positions were abolished for each workday until the date of permanent abolishment.
3. Employees referred to in claim 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 Employes involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934; and
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
        That the Agreement was violated.

° Award Number 24536 Page 4
    Locket Number CL-24241

    A W A R D


The claim is sustained as to Item No. 1. Item No. 2 is sustained to the extent indicated in the Opinion. Item No. 3 is denied.
                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest:
        Nancy J. v -Executive Secretary


Dated at Chicago, Illinois, this 19th day of October, 1983.
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