NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 29828
Docket No. MW-29653
93-3-90-3-655
The Third Division consisted of the regular members and in
addition Referee Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville
(and Nashville Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement
when it failed to furnish Messrs. S.
L. Johnson and R. E. Bryant a five
(5) day written notice, as
prescribed by Rule 21(b), prior to
abolishing their positions [System
File 16(16)(89)/12 (89-942) LNR].
(2) As a consequence, Claimants S. L.
Johnson and R. E. Bryant shall be
paid forty (40) hours' pay at their
track repairman's straight time
rate."
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 employe 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.
At issue in this case is application and interpretation of
Rule 21 - FORCE REDUCTION, which reads, in pertinent part, as
follows:
Form 1 Award No. 29828
Page 2 Docket No. MW-29653
93-3-90-3-655
"21(b) Five (5) working days' notice will
be given to men affected before the
reductions are made, this five (5)
working days' notice not to apply
when immediate unforeseen reductions
are necessary account of inclement
weather. It is understood, however,
that the five (5) days' notice will
be a written notice to each individual involved in a particular force
reduction. It will not be necessary, however, to give this five (5)
days' notice to track department
repairmen if they are serving on
temporary vacancies of less than
twenty-five (25) working days."
Claimants have each established and hold seniority as Track
Repairmen. At the time that this dispute arose, they were
regularly assigned as such to Gang 5M10.
The facts and contract language in this case are entirely on
point with Award 3 of Public Law Board No. 4604, decided on this
property between these parties on February 24, 1989. Thus, the
ruling in that Award is controlling in this case. In that case the
Board found as follows:
"In this case, Rule 21(b) required that a five
day written notice be given to Claimant. In
accord with the notice requirements (and in
order to keep a record of its compliance with
the notification requirements), the carrier
has promulgated a form giving the notice and
requiring the affected employee's signature
acknowledging receipt of the notice. Here,
Claimant contends that he did not receive the
written notice. If written notice was given,
as asserted by the Carrier, then the signed
form by Claimant should have been readily
available to the Carrier. That form has not
been produced in this record. We must therefore conclude as argued by the organization
that this record sufficiently demonstrates
that
no
written notice was given to Claimant
as required by the rule."
Nothing on the record before us persuades this Board that the.
foregoing Award was erroneous. Accordingly, the Board must sustain
the organization's claim.
Form 1 Award No. 29828
Page 3 Docket No. MW-29653
93-3-90-3-655
A WAR D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Catherine Loughrin = Interim Secretary to the Board
Dated at Chicago, Illinois, this 29th day of September 1993.