Parties to said dispute waived right of appearance at hearing thereon.
At the time this claim arose, Claimant was assigned as a Foreman on Force 6C06, headquartered at Lexington, Kentucky. Claimant's workweek was Monday through Friday, with rest days of Saturday and Sunday. On May 13, 1991, Claimant's Supervisor issued a notice abolishing Force 6C06 as of end of business on May 17, 1991. Shortly thereafter, Claimant bid on and accepted a Truck Driver position at a lower rate of pay. That position had rest days of Monday and Tuesday.
By letter of August 23, 1991, the Organization submitted a claim alleging that Carrier had violated various Rules including Rule =1, when it failed to give Claimant proper notice of his job abolishment and changed the rest days of the Truck Driver position into which Claimant bid without showing "operational need" to do so. Carrier denied the claim, pointing out that Claimant had been verbally informed that his position was about to be abolished, and that the Agreement was not violated with respect to rest days because the work was changed.
There is no basis on this record to support Paragraph 2 of the Organization's claim. It is apparent that the job bid into by Claimant was originally established with rest days of Monday and Tuesday, and that Claimant was aware of that fact when he bid on the position. Since Carrier operates seven days a week, it is to be expected that some jobs will have rest days other than Saturday and Sunday, and that when employees transfer to such positions, their rest days may be different from what they were on the employees' former position.
With respect to Parargraph 1 of the claim, however, the provisions of Rule 21(b) are clear:
It is unrefuted on this record that the written notice to Claimant was dated and received only four days prior to the abolishment of his position. Carrier protests that the fact that Claimant bid on and accepted another job without losing a day's work demonstrates that he knew in ample time that his position was to be abolished. That argument is without merit. Form 1 Award No. 31300
in a similar case involving these Parties, Third Division Award 29865 held:
:n light of tile :act --hat the notice to Claimant was defective oy a single day, =his Board finds that he is entitled to the difference between !:is Foreman's pay !the abolished position) and what he received :n his subsequent Truck Driver's position, for one day.
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.
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 31300, DOCKET MW-30947
(Referee Wesman)
The Majority clearly failed in its responsibility to review and render a proper decision in this docket. Although the Majority held that the Claimant was entitled to the difference in pay between that of a foreman and truck driver for one (1) day, the facts were ignored and the Majority issued its erroneous award to further deprive the Claimant of his contractual rights. Hence, a limited and constrained concurrence is appropriate. As to the balance of this award, however, it is palpably erroneous and should not be considered as precedent for the following reasons.
First, the majority completely ignored the direction explicitly enunciated within the very award findings in this case, i.e., Award 29865, involving the same parties as in this dispute. A review of the precedent cited by the Majority in this case reveals that the clear and unambiguous language of Rule 21(b) states:
In the instant case, it is clear that the Claimant was occupying a position of foreman on Force 6C06. It is equally clear that the Carrier's written notice of abolishment was for the positions of one (1) truck driver and one (1) trackman. Hence, the Claimant's position of foreman on Force 6C06 was never abolished in accordance with the clear and unambiguous language of Rule 21(b). The Majority's findings that the written notice was defective by a single day is simply erroneous. It wasn't the timing of the notice that was the issue here, but that of the language of the written notice. The written notice abolished one (1) truck driver position and one (1) trackman position. What is equally clear is that the Carrier never abolished the Claimant's foreman position. Inasmuch as Rule 21(b) states that each individual involved in a force reduction is contractually entitled to a five (5) working day notice and inasmuch as Award 29865 states that the rule cites no exceptions, then none can be implied, the findings of the Majority in Award 31300 insofar as the remedy is concerned is woefully inadequate. In other words, the Board overlooked the fact that the Claimant's position of foreman on Force 6C06 had not been abolished as per Rule 21(b). Nevertheless, the Majority accepted the written notice as to apply to his position and awarded him the difference in pay for one (1) day. The Majority simply erred, much to the detriment of the Claimant and the integrity of the Agreement. Labor Member's Concurrence and Dissent Award 31300 Page Three
The Majority did not stop there in its wanderings from the clear language of the Agreement and the precedent set forth by this Hoard. More damage was done when the Majority flippantly stated that:
The problem here is that the carrier never established an operational need to deviate from the Monday through Friday work week with Saturday and Sunday as rest days. Moreover, the Carrier never even addressed the issue of the improper rest day assignment other than to state it was free to manage its business as it sees fit absent "some legislative restraint or contractual limitation". It is obvious that this Carrier has no regard with the clear and unambiguous language of the Agreement because Rule 28, cited by the General Chairman, clearly does limit the Carrier in the assignment of rest days other than Saturday and Sunday. Rule 28(c) states:
In this case, the Carrier was clearly challenged by the organization from the very inception of this case to show an operational requirement that would allow it to bulletin positions at Lexington, Kentucky with rest days other than Saturday and Sunday. Up until the time this dispute arose, all Maintenance of Way activity was performed on a five (5) day a week basis -n accordance with Rule 28(d), which reads:
Throughout the entire handling of this case, the Carrier never addressed the issue of an operational requirement prior to changing employes' rest days. Although the Carrier alleged that the Claimant assumed the rest days of the new assignment, i.e., Monday and Tuesday, he did so in accordance with this Board's advice of "obey now and grieve later". This is exactly what the Claimant did. In other words, he accepted the assignment and filed the instant claim. Since, the Carrier failed to show an operational requirement prior to changing the Claimant's rest days from Saturday and Sunday to Monday and Tuesday, it violated Rule 28 of the Agreement. Hence, the Majority made a grievous error when it failed to sustain Part (2) of the claim. With the Majority's Labor Member's Concurrence and Dissent Award 31300 Page Five