The Third Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered.
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.
The Parties deemed two portions of Rule 9 EXERCISE SENIORITY - FORCE REDUCTION pertinent to this dispute. Paragraphs (e) and (f) read as follows:
On July 13, 1994, the SOO Line Railroad was struck by the United Transportation Union (hereinafter referred to as "UTU"). Said strike continued until August 29, 1994, when President Clinton assigned a Presidential Emergency Board (PEB) to review the SOO/UTU dispute. That assignment effectively ordered all employees back to work. Throughout that period of time, members of the Brotherhood of Maintenance of Way Employes (BMWE) voluntarily honored the UTU picket lines.
The Claimant established and holds seniority as a Crane Operator with seniority as such dating from September 24, 1991, in the Maintenance of Way and Structures Department. At the time this dispute arose, the Claimant was regularly assigned as such on Extra Gang R-1 on the River Subdivision. Commencing July 14 through August 29, 1994, the Claimant honored the UTU picket lines. Subsequent to the Presidential Executive Order, the Claimant was required to be available to return to work but, on August 29, the Carrier notified her not to report for her assignments until September 6, 1994.
On October 24, 1994, the Organization submitted a claim on behalf of the Claimant and 68 additional Maintenance of Way employees maintaining that the Carrier had violated Schedule Rules 1, 2, 3, 4, 5, 19, 20 and 23, as well as the Presidential Executive Order of August 29, 1994, when it "arbitrarily" decided to withhold the Claimant(s) from service until September 6, 1994. Of note, in subsequent correspondence the Parties opted to consolidate the 69 identical claims into one. Form 1 Award No. 35327
In that same correspondence, the Carrier stated that it would pay eight hours holiday pay for Monday, September 5 to any individuals who were "penalized and lost holiday pay" to which they would have been otherwise entitled.
In response to the Carrier's denial, the Organization asserted that the Presidential Emergency and Executive Order required both the Carrier and the Organization to resume the pre-strike status quo and that the Carrier was not free to "arbitrarily pick and choose" who was to report to work and upon what date. Further, the Organization maintained that it was incumbent upon the Carrier to produce evidence to support the "affirmative defense" that equipment and material stored off Company property had to be relocated and inspected, prior to recalling the Claimants. Finally, the Organization contended that on August 25, four days prior to the August 29 Executive Order, the Carrier managers told General Chairman Birnbaum, in words or substance: "If BMWE members were willing to cross UTU picket lines they could mark up and return to work."
The crux of this dispute centers upon the Organization's allegation that, subsequent to the cessation of the 47-day UTU strike, certain BMWE members were not recalled to work in a timely manner. Specifically, the Organization maintains that Rule 9(f), supra, prohibits the Carrier from "refusing to allow" the Claimants to return to work following the restoration of operations on August 29, 1994. For its part, the Carrier maintains that anyone who had assignments and work functions that could begin immediately were instructed to report for work on August 30, while others, including the Claimant were returned as soon as possible on September 6, 1994, subsequent to the Labor Day holiday. Form 1 Award No. 35327
We find no evidence on this record that causes us to conclude that the Carrier violated the Agreement. The very circumstances which constitute the genesis of this dispute are clearly set forth in paragraphs (e) and (f) of Rule 9, and under such circumstances, the Carrier is entitled to some latitude with respect to recalling employees. In view of all of the circumstances, the short delay experienced by some BMWE members cannot per se establish bad faith by the Carrier, unreasonable, arbitrary or capricious exercise of managerial discretion or a willful violation of any of the cited Agreement provisions. Therefore, this claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.