Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31304
Docket No. MW-30975
95-3-92-3-927
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:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when the carrier
improperly abolished six (6) machine operator
positions, headquartered at Proctor, Minnesota
within notices dated August 19, 23, 30 and
September 4, 1991 (Claim No. 20-91).
(2) As a consequence of the violation referred to ,
in Part (1) above, Machine Operators J.
Sawyer, J. Herendeen, C. Brodin, and H.
Swanson shall each be compensated eight (S)
hours' pay, at the machine operator's rate,
for each work day they were improperly removed
from their positions, beginning on the
effective date of the improper abolishment
(September 16, 1991) and continuing."
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.
Parties to said dispute waived right of appearance at hearing
thereon.
Form
1
Award No. 31304
Page 2 Docket No. MW-30975
95-3-92-3-927
At the time this dispute arose, Claimants were assigned as
machine operators with headquarters at Proctor, Minnesota. By
notice dated August 19, 1991, Claimants were notified that their
positions were to be abolished effective August 26, 1991.
Following several postponements of the abolishment, Carrier
abolished Claimants' positions effective September 16, 1991. In
its notice of abolishment, Carrier stated "This is not a Force
Reduction; employees are not laid off and are expected to exercise
their seniority, immediately." Italics in original.
By letter of September 25, 1991, the Organization filed a
claim alleging that Carrier had violated Rule 5 - Force Reduction
of the applicable agreement. Rule 5 reads in pertinent part as
follows:
"(a) When forces are reduced, the senior employees in
the respective groups and gangs will be retained, and
those affected either by being laid off or displaced will
have the right of exercising their seniority rights under
the following conditions.
(e) Seniority rights when exercised in displacing other
employees under this rule must be exercised within ten
(10) calendar days after the employees are laid off, or
they will forfeit all rights to displace other employees
under such force reduction.,,
Carrier denied the claim and referred the organization to a
special agreement between the Parties, dated September 9, 1991.
That agreement read in part:
. Rule 5(e) means that employees who elect to displace
other employees may take up to ten days to do so, and in
the meantime, they may remain away from service. This
applies in a force re-arrangement as well as in a force
reduction."
As in Third Division Award 29142, involving the same parties,
this Board finds that the Organization has offered no evidence to
contradict Carrier's assertion that it suffered no reduction in
force, but was simply rearranging its current work force to meet
changing work requirements.
Form 1 Award No. 31304
Page 3 Docket No. MW-30975
95-3-92-3-927
It is unrefuted on this record that Carrier gave Claimants
ample notice of the abolishment of their positions. Nor is there
any evidence to support the organization's claim for eight (8)
hours' pay for each work day Claimants were "improperly removed
from their positions." It is also undisputed on this record that
Claimants were afforded the opportunity, as provided in Rule 5(e)
and the special Agreement, to take ten days to exercise their
seniority once their positions were abolished. Three of the four
Claimants took at least one day off without pay prior to assuming
their new assignments.
The essence of the claim in this case is that carrier
improperly abolished Claimants' positions in the course of a force
reduction. Since the Organization has failed to meet the prima
facie burden of showing that Carrier in fact engaged in a force
reduction the instant claim must be denied. See also, Third
Division Award 14701.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant(s) not
be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of January 1996.