The Third Division consisted of the regular members and in addition Referee Robert M. O'Brien 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 material facts that led to this claim are not in dispute. On July 15, 1997, the Claimant was displaced from his regularly assigned position as a Signalman in Eugene, Oregon. Pending his assignment to a new, permanent position the Claimant worked temporary positions. On September 12, 1997, he was assigned to the position of Signal Shop Foreman on the Portland Seniority District. On September 12, 1997, this position was abolished. The Claimant was not given five working days' advance written notice that the Signal Shop Foreman's position was going to be abolished.
On November 5, 1997, the Organization filed a timely claim on behalf of the Claimant. The Organization alleged that the Carrier violated Rule 35(a) by not giving the Claimant five working days' advance notice in writing that the Signal Shop Forman's position was going to be abolished. The Organization requested that the Claimant be compensated at the Signal Shop Forman's rate of pay, including any lost overtime work, until the Carrier complied with Rule 35.
The Carrier denied the claim asserting that the Claimant was not entitled to five working days' written notice because he was not permanently assigned to the position that was abolished on September 12, 1997. It is the Carrier's position that Rule 35(a) is inapplicable to employees who do not hold permanently assigned positions. Inasmuch as the Claimant was not the permanent incumbent of the Signal Shop Foreman's position when it was abolished, the Carrier contends that he was not entitled to the written notice set forth in Rule 35(a).
On its face, Rule 35 (a) is not limited to employees who are assigned to permanent positions. There are two exceptions in Rule 35 to the five day written notice requirement, namely "emergency conditions" and a "labor dispute." Neither of these exceptions is applicable here. If the parties intended "assignment to temporary positions" also to be excluded from the notice requirements of Rule 35(a) it appears to the Board that they would have included this exclusion in Rule 35 along with "emergency conditions' and a "labor dispute."
The Board agrees with the Carrier that it is illogical to require employees assigned to temporary positions to be given five days' written notice of the abolishment of such positions because these positions may be abolished at any time. Nevertheless, as noted above, there is no exclusion in Rule 35 for employees assigned to temporary positions. Therefore, the notice requirement in Rule 35(a) must also apply to these employees.
The appropriate remedy for the Carrier's violation of Rule 35(a) is to make the Claimant whole for the compensation he would have earned in the Signal Shop Foreman's position for the five working days following September 12, 1997, less the compensation he earned during these five working days. Form 1 Award No. 35368
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.