NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 25324

THIRD DIVISION Locket Number MW-25155

Robert W. McAllister, Referee

(Brotherhood of Maintenance of Way Employes

PARTIES TO DISPUTE:

(The Chesapeake and Ohio Railway Company

(Northern Region)

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it laid off Trackman D. Carroll on January 5, 1982 without benefit of five (5) days' advance notice (System File C-TC-1310/MG-3419).

(2) The claimant shall be allowed eight (8) hours of pay at his straight time rate because of the violation referred to in Part (1) hereof.

OPINION OF BOARD: The Claimant, Trackman D. Carroll, was laid off on January
5, 1982. He was regularly assigned to Force 1150, an AFE
Gang. With no advance notice, it is charged that the Claimant could not make a
displacement until January 7, 1982, thus losing one day's pay. The Carrier
points out that the members of Force 1150 were notified in accordance with Rule
8 1/2 on December 23, 1981, that, effective with the close of business December
31, 1981, they would be furloughed. This did not take place due to unforeseen
complications. It is the Carrier's position that each member of Force 1150 was
personally informed that work was available on a strictly voluntary, day to day
basis and that they had the option of exercising seniority rights prior to or
on the cut off date of December 31, 1981. The problem with this argument is
that it is simply an assertion. The only substantive evidence contained in the
record is a written statement dated March 15, 1982, addressed to the Assistant
General Chairman and signed by the Carrier Foreman in charge of the force.
There is no mention of the gang members being given the option to exercise
their seniority rights or continue on working in a temporary status. On the
contrary, the Foreman states:

'We were not told that we could work on a day to day basis, but that we were to work on a day to day basis.'

Later, the Foreman states:

"These men wished to be cut off on the cut off date so they could their bumps where they could."

The absence of any rebuttal evidence to the contrary, this Board finds the record as a whole supports the Organization's claim.

Award Number 25324 Page 2

Locket Number MW-25155

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 sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest: j Nancy ..Plover - Executive Secretary //

Dated at Chicago, Illinois, this 15th day of March 1985.