Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27016
THIRD DIVISION Docket No. !fW-26750
88-3-85-3-504
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Oklahoma, Kansas and Texas Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it laid off Machine
Operator K. S. Mowat without benefit of five (5) working days' advance notice
(System File OKT-P-797/2579-OKT).
(2) Claimant K. S. Mowat shall be allowed forty (40) hours of pay at
the machine operator's straight time rate because of the violation referred to
in Part (1) hereof."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
There is no dispute that the Claimant received written notice on
Monday, January 9, 1984, of her furlough owing to force reduction at the end
of the same day. The Carrier contends that the Claimant was also given _oral
notice on Tuesday, January 3, 1984, of her forthcoming furlough on January 9.
There is no serious contention that she did not receive such oral notice,
which the Carrier states was given at the beginning of the work day.
The Claimant was scheduled to work Monday through Friday, with
Saturday and Sunday as rest days.
Required advance notice of furlough is covered in Article III of the
June 5, 1962 National Agreement which states in pertinent part as follows:
Form 1 Award No. 27016
Page 2 Docket No. MW-26750
88-3-85-3-504
"ARTICLE III - ADVANCE NOTICE REQUIREMENTS
Effective July 16, 1962, existing rules
providing that advance notice of less than five
(5) working days be given before the abolishment
of a position or reduction in force are hereby
revised so as to require not less than five (5)
working days' advance notice."
The Organization argues that written notice is required and that the
Claimant is therefore entitled to five days' pay in lieu of such written
notice. Examination of the applicable Rule shows no requirement as to the
form of notice (although notice in writing can obviously forestall later
dispute as to timeliness). Thus, the absence of advance written notice does
not, in the Board's view, entitle the Claimant to the claimed five days' pay.
However, the requirement of "not less" than five working days'
advance notice must logically be read to exclude the day on which notice is
given (although it does include, with equal logic, the last day worked). This
view is supported by Third Division Award 21766, citing previous Awards to the
same effect.
Thus, the Board finds that the notice given on Tuesday, January 3 for
a furlough to be effective at the end of work on January 9 constituted only
four working days' notice. The Claimant is thus entitled to one day's pay for
failure of the Carrier to comply fully with the Rule.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J ver - Executive Secretary
Dated at Chicago, Illinois, this 25th day of April 1988.