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 2,1997, the Claimant was cleared to return to work following a medical leave of absence. Pending his assignment to a new, permanent position the Claimant worked a number of temporary openings. On September 12, 1997, he was working an unassigned Signalman's position when this position was abolished. The Claimant was not given five working days' written notice that this position was going to be abolished.
The Organization filed a timely claim on behalf of the Claimant. It alleged that the Carrier violated Rule 35(a) by not giving the Claimant five working days' advance notice in writing that the position he was working was going to be abolished. The Organization requested that the Claimant be compensated at the Signalmen's rate of pay, including any lost overtime work, until the Carrier complied with Rule 35.
The Carrier denied the claim contending that the Claimant was not entitled to advance notice because he was not permanently assigned to the Signalman's position that he was filling in as a "floater" on September 12,1997. It is the Carrier's position that Rule 35(a) does not apply to employees who fill various positions as a "floater." Inasmuch as the Claimant was not permanently assigned to the Signalman's position when it was abolished, the Carrier maintains that he was not entitled to the advance written notice set forth in Rule 35(a).
On its face, Rule 35(a) is not limited to the employees assigned to permanent positions. There are two stated exceptions in Rule 35 to the five day written notice requirements, "emergency conditions" and a "labor dispute." Neither of these exceptions is applicable here. If the parties had intended "assignment to floater 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 "floater" 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 "floater" 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 compensate the Claimant for the wages he would have earned in the Signalmen'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. 35369
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.