Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31107
Docket No. CL-31329
95-3-93-3-282
The Third Division consisted of the regular members and in
addition Referee Elizabeth C. Wesman when award was rendered.
(Transportation Communications
( International Union
PARTIES TO DISPUTE:
(SouthRail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the
Organization (GL-10953) that:
1. Carrier violated the Agreement at Corinth, MS,
Tupelo, MS, Louisville, MS, Artesia, MS,
Tuscaloosa, AL and Jackson, MS (General
Office) on June 25 or 26 or both, when it
refused to permit TCU Agreement covered
Clerical employes to perform service.
2. Carrier shall now compensate all TCU Clerical
Agreement covered employes at Corinth, Tupelo,
Louisville, Artesia, Jackson, MS and
Tuscaloosa, AL who were improperly prohibited
from working on either June 25 or June 26,
1992, or both, in an amount equal to what such
employes would have earned had they not been
prohibited by Carrier from performing service.
3. Carrier shall also restore any benefits which
would have accrued to Claimants had they not
been prohibited from working on the above
dates."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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.
Form 1 Award No. 31107
Page 2 Docket No. CL-31329
95-3-93-3-282
Parties to said dispute waived right of appearance at hearing
thereon.
On June 24, 1992, the International Association of Machinists
(IAM) instituted a strike against a single carrier: the CSX
Corporation. In response to the IAM-CSX strike, all other Carriers
who had previously participated in national handling imposed an
employee lock-out. SouthRail was not a party to the prior national
negotiations. Ultimately, on June 26, 1992, all parties were
required by Public Law 102-306 to resume the status quo as it
existed prior to 12:01 A.M., June 24, 1992. The case before this
Board does not concern interpretation of Public Law 102-306.
Rather, the Organization maintains that SouthRail violated Rules 5
and 22 of the Agreement between the parties when it in abolished
positions of Clerical employees on June 25, 1992. Rule 22 reads in
pertinent part:
"...(d) Advance notice to employees shall not be
required before abolishing positions under emergency
conditions, such as flood, snow storm, hurricane,
tornado, earthquake, fire or labor dispute other than as
covered by paragraph (f), provided such conditions affect
company's operations in whole or in part. Such
abolishments will be confined solely to those work
locations directly affected by any suspension of
operations."
In its initial response to the organization's claim, carrier
asserted that it had experienced an "accelerating decrease" in its
business, as a result of the IAM strike and consequent lock-out by
other carriers. when carrier's assertion was contested by the
organization, however, Carrier did not support its assertion with
any substantive evidence of actual decline in business on the dates
in question. Once Carrier has asserted an affirmative defense it
must be willing to furnish documentation to support that defense.
In this instance Carrier has not done so. (See Third Division
Awards 21262, 29016). Accordingly, the claim is sustained.
AWARD
Claim sustained.
Form 1 Award No. 31107
Page 3 Docket No. CL-31329
95-3-93-3-282
ORDER
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant(s) be
made. The Carrier is ordered to make the Award effective on or
before 30 days following the postmark date the Award is transmitted
to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 1st day of September 1995.