Form I Award No. 40906The 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.
At all times relevant to this dispute, the 19 Claimants in this dispute were assigned to various positions in the Signal Department. On February 21, 2006, six Claimants (Hansen, Lavin, McGee, Penman, Ruddy and Torres) (referred to as "the Hansen Claimants") were among 25 employees who received notices that the positions that they held would be eliminated at the end of shift on February 27, 2006. On February 24, 2006, a Carrier manager assisted the employees whose positions were to be abolished in exercising their seniority into positions that were still active. The remaining 13 employees (referred to as "the Alonzo Claimants") did not have their positions abolished. Instead, the Alonzo Claimants were displaced through exercise of seniority by senior employees whose positions had been abolished effective February 27, 2006.
The Organization objects that the 19 Claimants did not receive proper notification of a force reduction in violation of Rules 31, 49, and past practice and asserts that they are entitled to compensation, and all associated benefits, for 32 additional hours. The Carrier asserts that the claim must be denied because 1) the Hansen Claimants received the required notices on February 21, 2006, and 2) the Alonzo Claimants, whose positions were not abolished, were not entitled to Rule 31 notices, and received proper notices of their displacement.
In this case, the Alonzo Claimants were not displaced by a force reduction that abolished their positions; instead, they were displaced due to the exercise of seniority by more senior employees whose positions were abolished in the force reduction. As we held in Award 40835, while an employee being displaced in this way would be entitled to notice of the displacement from the displacing employee, an employee Form 1 Award No. 40906
whose position is not abolished is not entitled to notice from the Carrier under Rule 31. The claim is accordingly denied with respect to the Alonzo Claimants.
As for the Hansen Claimants, they were given five working days' advance notice (on February 21, 2006) that their jobs would be abolished effective at the end of the shift on February 27, 2006. The Organization objects that these notices were insufficient because the words "force reduction" did not appear on the notices. Nonetheless, the Board finds that these notices, while not identical to the notice form in Rule 49, contained sufficient information to satisfy the Carrier's obligation to the Hansen Claimants under Rules 31 and 49. The notices specifically stated that the employees' positions would be "abolished" on the designated date, and showed copies to Organization representatives. Even the Note to Rule 31 states, "Brief telephone advice of position abolished or force reduction shall be considered compliance with this rule," as long as written confirmation follows. The italicized "or" indicates that "force reduction" is not a magic phrase that must be included in notices given under Rules 31 or 49. Even if the Claimants did not hear a Carrier representative refer to the changes as a "force reduction" until February 24, 2006, the Organization failed to prove that this invalidates the notices properly given on February 21, 2006.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
Labor Member's Dissent
to
Third Division Award 40906 (SG-40753)
Referee Lisa Salkovitz Kohn
The undersigned respectfully objects to and di ssents from the Board's Third Divis ion Award No. 40906, dated March 10, 2011.
In this case, the Neutral member ruled that, "these notices, while not identical to the notice form in Rule 49, contained sufficient information to satisfy the Carrier's obligation to the Hansen Claimants under Rules 3? and 49."
She pretends that Rule 31 is per missive in nature and that, as long as Carrier presents "sufficient" information in a timely manner, it has satisfied its "obligation."
She essentially ignored that the negotia ting parties had settled on the word "shall" in crafting Rule 31; leav ing no doubt that the " form prescribed in Rule 49" must be delivered and confirmed in order to be considered proper notice.
To this date, the Claimants have yet to rece ive proper notice, and the Minority rejects the subjective interpretation of Rule 31 by this Neutral.
rule. Such advice shall be pr omptly confirmed in the form prescribed in Rule 49. Employees to whom such telephone advice is s ent shall promptly acknowledge receipt by wire to Div ision Engineer. Such telephone advice of force reduction or position abolishment shall be sent to the General Chairman, but not to the Local Chairman." (Emphasis added)
