Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33642
Docket No. MW-32635
99-3-95-3-565
The Third Division consisted of the regular members and in addition
Referee Robert M. O'Brien when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it abolished
the positions on SPG Gang SXT9, effective December 15, 1994,
without furnishing five (5) working days' advance notice [System
File 21(47) (94)/12(94-1064) CSX].
(2) As a consequence of the aforesaid violation, the employes
of SPG Gang SXT9 shall each be allowed ten (10) hours' straight
time pay for December 16, 19, 20, 21 and 22, 1994."
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
involved herein.
over the dispute
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 33642
·r'
Page 2 Docket No. MW-32635
99-3-95-3-565
The Claimants were members
of
System Production Gang (SPG) SXT9.
They were assigned to work Monday through Thursday, ten hours each day.
On November 10,1993, the Carrier posted a bulletin
of
the tentative work
schedule for SPG SXT9. The gang was scheduled to commence work on March
14, 1994 and end on November 11, 1994. However, they did not conclude the
production season until December 15, 1994.
The Organization contends that on Thursday, December 15, 1994, the
members
of
SPG SXT9 were verbally advised that their positions would be
abolished effective at the end
of
that workday. According to the Organization,
this was the first indication the gang had that their positions were to be abolished.
However, the Carrier insists that all members
of
the gang were aware that
production work would cease on December 15, 1994.
Rule 13 - Force Reduction,
of
the Agreement between the Organization
and the former Seaboard Coast Line Railroad was applicable to SPG SXT9 in
December 1994. Rule 13 provides, in pertinent part, as follows:
"Section 1
Five (5) working days' notice shall be given to employees
affected before force reductions are made, with copy
of
notice to
General Chairman, except as provided for in Article VI -
EMERGENCY FORCE REDUCTION RULE, February 10,1971
National Agreement... :'
The Organization avers that the members
of
SPG SXT9 were not given five
working days' notice that their positions were to be abolished. Therefore, they
are each entitled to ten hours' pay for December 16, 19, 20, 21 and 22, 1994, in
the Organization's opinion.
The Board has previously determined that Rule 13 does not requirewritten
notice to the employees affected by a force reduction, but it does require written
notification to their General Chairman. (See Third Division Award 32916.) The
Carrier insists that the members
of
SPG SXT9 were aware that their production
gang work would end on December 15, 1994. However, the Carrier never
Form 1
Page 3
Award No. 33642
Docket No. MW-32635
99-3-95-3-565
established exactly when they were given the notice required by Rule 13, Section
1.
Even if the members of SPG SXT9 were not given five working days' notice
that their positions would be abolished as required by Rule 13, Section 1,
nevertheless they are not entitled to compensation for December 16, 19, 20, 21
and 22, 1994, because they did not sustain any loss of earnings on these days.
The Board has ruled on several occasions that in order to be entitled to
compensation for a violation of advance notice rules similar to Rule 13, Section
1, employees must demonstrate that they lost earnings during the five working
days following the date on which they were notified that their positions were to
be abolished. (See for example, Third Division Awards 14705, 21691and 28545.)
Because the members of SPG SXT9 did not lose any earnings on December 16,
19, 20, 21 and 22, 1994, they are not entitled to compensation for these days even
if they were not given the notice required by Rule 13, Section 1.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby
orders that an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.
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