Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29434
 THIRD DIVISION Docket No. MW-29571
 92-3-90-3-520
 The Third Division consisted of the regular members and in
 addition Referee Dana E. Eischen when award was rendered.

 (8rothernood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The .Agreement teas violated when, beginning September 1989, the Carrier began issuing nullst_ns (Louisiana Division Bulletins LOU 00133, LOU 00138, .Arkansas Division .;RC 00340 - 00353, ARK 00359 - 00390, ARK 00337 - 00339 and ARK 00357 - ®0359) wherein positions and gangs were advertised as 'seasonal' (Carrier's File ~u01o7 :1PR).

 (2) T;>? Carrier s:ia-1 be prohibited from advertising positions or gangs as 'seasonal' ~n job ~u-:Lztins."

 FINDINGS:
The Thirl Division )_ the Adjustment Board ipon the whole record and all the evidence, :ands :hat:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carriar and employes within the meaning of the Railway Labor act as .approved _;une 21, 1934.

 This Division of tae .adjustment Board has jurisdiction over the dispute involved '::erein.

On August 4, 1988, the Worker Adjustment and Retraining Notification Act (WARN or "Plant Closing Act") became law. Section 8(a) of WARN directed the Department of Labor (DOL) to issue interpretive regulations for WARN. At the outset, the DOL emphasized the remedial purpose of WARN which was to provide full-time employees days advance notice of an employer's reduction in employment levels. Section 4 (1) of WARN provides:

Form 1 Award No. 29434
 Page 2 Docket No. :4W-29571
 92-3-90-3-520
 (1) the closing is of a temporary facility or the
 closing or layoff is the result of the completion of
 a particular project or undertaking _and the affected
 employees were hired with the understanding that
 their employment was limited to the duration of the
 facility ,)r the i:roject or undertaking;"
 (emphasis added)

 Although Section 4 exempts temporary/seasonal projects from the 60 day advance notice requirement, Cnn.~ress incorporated the thrust of WARN in the exemption--to provide advance information to employees about their future employment status. -Pits b-jc'kground information is pertinent to this dispute.







One of the General Chaff-men took exception to the Carrier's position and stated:

On September 18, 1989, the Carrier denied the General Chairman's allegation that the Carrier's notice circumvented the Plant Closing Act, and agreed to discuss the matter In conference. Carrier declined to remove the seasonal notice announcement _'rom gang bulletins and the Organization Elled a claim of contract violation.

 For its part, the Organization cites Rule 11 of the Agreement which reads as follows:
 --"orm 1 Award No. 29434
 Page 3 Docket Yo. HW-29571
 92-3-90-3-520
 "Rule 11 (a) New positions and vacancies will be
 advertised promptly and in any case no later than ten
 (10) days following the establishment of the position
 or date the vacancy occurs. Temporary vacancies
 created by reason of a regularly assigned employe's
 absence due to sickness or injury, or authorized
 leave 31 absence .Then known to be of twenty (20) days
 or more duration will, if the vacancy is to be
 filled, be adver_ised and assigned as 'temporary
 vacancies' in the same manner as other positions are
 advertised and assigned under the provision of this
 Rule i1. 4 vacancy created by assignment of an
 emplo-a to a te,aporary vacancy will not be advertised
 as a temporary vacancy, but the advertisement will
 show the reason for the vacancy. When the employe
 creating a temporary vacancy returns, he will resume
 his regular assi?ament, and the employe or employes
 who ·ijve moved up by reason of his absence will be
 required to ~itsplace on the position to which
 previously asst.,ned, if the same is still in
 existence. Employes assigned to temporary vacancies
 will ~)e subject to displacement by senior employes
 who have displacement rights."

 According to the Organization, this dispute pivots on the Carrier's refusal to remove the wordin., "seasonal employment" trom bulletins for temporary and permanent posi Organization submits that Ru:e 11 does not provide for the inclusion of such -wording in the bulletins, and should the Carrier want to include such verbiage, it must be accompli Aissouri Pacific Railroad, as Carrier is predominately a southern railroad which is "relatively unaffected by adverse weather conditions" such as cold weather.

 Finally, the organization restated that the inclusion of such wording was the Carrier's attempt to "circumvent the requirements" for a 60 day notice prior to layoffs as provided for by the Plant Closing Act.



Form 1 award No. 29434
 Page 4 Docket No. MW-29571
 92-3-90-3-520
 ('_') Employes must clearly understand at the time
 of hire that their employment is temporary. When
 such understandings exist will be determined by
 reference to employment contracts, collective bar
 gaining agreements, or employment practices of an
 industry or a locality, but the burden of proof will
 lie with the employer to show that the temporary
 nature of the project or facility was clearly com
 municated should questions arise regarding the
 temporary employment understandings.
 1) Employers in agriculture and constriction
 freque,tl% 'lire workers for harvesting, processing,
 or fir work on -i ,).irticular building or project.
 Such w)rk ii y he seasonal but recurring. Such work
 f31!: :rider tit; -xemption if the workers understood
 at the time them were hired that their work was tem
 porar~. Tn uncertain situations, it may be prudent
 for employers to clarify temporary work understand
 ings ;n writing when workers are hired. The same
 employers may also have permanent employees who work
 on a variety of jobs and tasks continuously through
 most Dc the calendar year. Such employees are not
 tncli.:ed under tits exemption. Giving written notice
 that 3 project 1, temporary will not convert per
 manent employment into temporary work, making jobs
 exenot from WARN."

 According to the Carrier, there is no langua3e in the Agreement generally, or in Rule 11 specifically, -which prohibits the Carrier from including the term "seasonal" on gang bulletins. The Carrier reiterated that it is cognizant of the unique meaning of the term "temporary" in the industry, and was merely attempting to avoid confusion while striving to comply with WARN. The Carrier further maintains that the Organization has failed to establish any rule that would prohibit the inclusion of language in Carrier's "reasonable, good faith" attempt to comply with WARN.

 Pursuant-) the DOL's issuance of final regulations, Carrier sought to determine their impact on Carrier's operations and interactions with its various collective bargaining agreements including the Organization's. Germane to the Carrier, were "temporary" exception. DOL stated that certain industry practices are sufficient to put employees on preclude the necessity of advance written notice about the temporary nature of the jobs. A critical element of WARN, according to the DOL, is that the employer communicate an understanding to the employees at the outset, that when the work is done, their jobs will cease. The Carrier concluded that the traditional, project specific nature of maintenance gang work fell within the confines of the Se:tion 4(1) exception, and although Carrier determined that it technically did not need to provide this advance communication to its employees, Carrier opted to provide written notice, by way of gang bulletins, to avoid any misconception as to the permanent nature of such jobs.
 Form 1 Award No. 29434
 Page 5 Docket No. MW-29571
 92-3-90-3-520

 While attempting to develop bulletin language which would provide gang employees notice that tneir work was temporary, for purposes of WARN, the Carrier concluded that the use of the word "temporary" would be inappropriate as that word is a term of art with a particular meaning in the administration of the parties' agreement. Therefore, in an attempt to avoid confusion, the Carrier opted to use the term "seasonal" to denote that the gangs are not permanent.

 There is no dispute concerning the facts presented. However, it is incumbent upon the Organizat;on that it substantiate its claim of Agreement violation by a preponderance of the evidence. The Organization has failed to carry its burden in t~iis J~GDute.

 This Board finds nothing in the language of the Agreement, Past practice, or law whic'l1 ;ronibL~S - the posting o; tdintenance o' 'gay position bulletins. It is not for this Board to say a',ietner Carrier -ade a correct legal assessment of its exposure to possible liaoiLity under :ne statute; it is sufficient that the record supports Carrier's .3ss~rtio,~ D: a good faith reasonable business judgment in an area where its discretion ;s not circumscribed by Agreement, practice or law. There is no ,Agreement _upport for this claim and therefore it must be denied.






Attest:
        Nancy 1. ev -.=xecutive Secretary


Dated at Chicago, iLLinois, this 21st day of October 1992.