A:71~2J N0.
Case NO. SG-20---

SPECIAL BOARD O·` ADJl1JVIZiiT ?70. 605

PARTIES ) Penn Central Transportation Company
TO T - ) and
DISPUIr: ) Brotherhood of Railroad Signalmen

ISSUE 117
DISP=: Claim No. 1: System Doci:et 2.o. 61
Division 188

(a) Claim that the Company violated Articles I, Section 4 of the Agreement of February 7, 1965, w'·aon it failed t0 notify the employes of c. &- S., Seniority District No. 13 that it was suspenca hg operations and positions; thereby causing thcse employes to report for work at their -respective starting time, Monday, July 17, 1967.

(b) Claim that each and every one of the employes listed below b=: paid eight (3) hc·.U:s at the straight time rate of their resnactive positions for Monday, July 17, 1967 account of the violations cited in Claim (a) above:

Lorenz, J. N. Montgomery, R. ,L. anthony, J. D. Dotterer, J. E. Texter, W. H. Barnett, J. K.

Claim No.

Ins?. C&S
Ldg. 2d't'r..
M't'r. Test.
1-1, t' r. C&S
:4`t'r. C&S
M't'r. CAS

2: SSstem Docket

Rimes, G. E. - : ~ -. C=S
Kilgore, G. E. - Signalman
ii0hney, D. V. G'gna1Pan
Ad anS, J. W. - t'r. c&$
Adams, K. H. - -=' t'r. C&S
Hollobat-i~;h, ii. L..- :=ela3r C&S

--%To.

Division 187

(a) Claim that the Company violated P.rticle

I, Section 4 Of the Agreement of W °brUcry 7, 1965,
when it failed to notify the employcs of C. & S.
Seniority District Nlo. 13 that it was susp::nding
operations and positions; thereby causing theses
employes to report for work at their respective
starting time, Monday, July 17, 1967.

A:ra~D IN 0.

<o

Case No. SC-23-2

(b) claim that each and every one of the employes listed below be pain eigi:t hours at the straight time rate of their respective positions for Monday, July 17, 1967 account of violations cited in Claim (a) above:

Kalinoaski, S. L. - Insp. C&S Shoup, 69. E. - :'t'r. C6:S
Coward, H. D. - Insp. C&S Templeton, I·i. M. - M' t'r. CaS
Staniscia, G. B. - Insp. C&S Sarv,:·-_, D. F. - m't'r. C&S
Brain`., [T. J. - rorem'n. C6:S Frederick, J. E. - 2·i' t'r. CE:S
Div.°_a, H. G. - Ldg. h1,7 1 t 1 r. . Ste'~vcs. 33. R. - 2i' :: `r . CAS
TC:: )leton, T. C. - Ldg. ~'1't'r. Sta-niscia, Victor - Sir.nalman
· s - t~I" n e - - · C ' 1 l 1 .-..
M~ro~sin, J. D. M . Te't McP.fee, R. L. Asst. _gig < .,
Dailey, L. S1 T. - M't'r. Test ~~C:.:_u::., G. J. - asst. SiC'1'm
Dunning, D. R. - m't'r. C&S Carbonetti, P. D. - Asst. Sig'i'm
Dennett, R. D. - M't'r. Cs:S Skomo, Joseph - Helper
Young, M. C. - Ml t' r. Test Broncwicz, E. L. - Helper
Putze, A. R. - M't'r. C&S

OPINION Article I, Section 4, providEs in part, as follows:
Or BOARD: '
Notwithstanding other provisions of
this Agreement, a carrier shall have
the r:'.ght to make force reductions
. . under emerge.--y conditions such as
·flood, snowstorm, hurricane, earl: -
quake, fire or strike, providca that
operations are suspended in whole or
· in part and provided further that
because of such emergencies tho work
which world be performed by t::e
incumbents of the positions to be
abolished or the work cinich would be
performed by the employees involved
in thc: force reductions no lunge=
exists or cannot be performed. Six
teen hours advance notice will be
given to the employees affected before
such reductions are made
A strike of shop-craft employees was threatened
for July 17, 1967. on July 16, Carrier. posted a notice on

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^ A ;^IA I~D 'C ;Z C 0

Case !do. SG-22-Z

bulletin boards to employees represented by mcr.: than a dozen or ganization^o advising that existing positions would be te:porarily suspended beginning at 12:01 A.M. on July 17 for the duration of the strike. The notice a0vised employees that they would return to their regular positions upon the c-nd.of the stxil:e. Tae strike ended in a day and work was resamed on July 18.

Positions were not subject to bulletinir.;, as they woulO have been if they had been abolished. Both parties had agreed to the procedure for suspension of position:: rather than abolishment, in order to avoid the disruption and disorganization which would result if all positions were tnxo;wn open for bid. This understanding was embodied in a letter drafted by the Carrier's Manager-Labor Relations, dated July 14, and sent. to the General Chairman. Although a place was left on the letter for the General Chairman's signature under the 1acrds, "I conct:r," the General Chairman did not sign and returi: it.

. But the substance of the understanding was unchallenged.

The Employes contend that Carrier failed to give the notice specifically required by Article I, Section 4, o= the February 7, 1965, Agreement when forces are reduced as the result of a strike. Postings on bulletin boards rather than direct notification to the affected employees does not meet the Agreement's requirerents, it was said.

Accc-::ding to Carrier, the notice was adeqr:ate, and it was posted at least 16 hours in advance of the tir,~e that any of the Claimants was due to report. Ca=rIer also relies heavily upon a series of related awards of this Committee, Nos. 115, 116, 117 and 118, all concerning the same situation on other railroads, and all of which upheld the carriers' position and denied the claims.

Article I, Section 4, of the Agreemen~: permits a carrier to reduce forces of protected employees under emergency conditions, upon 16 hours' advance notice. In carrier's view, since the positions involved were temporarily suspended rather than abolished, notice is not required. But Section 4 contains no distinction between temporary suspensions and the abolishment of posl-:ions. A force reduction by some other name does not change the obligation to give notice.

-3-

A:rARD r:o. ~ C U

Case No. SG-2o-B

The February 7, Agreement guarantees cora;en:~a-

tion to protect( a employees. Compensation may be terminated or suspended only in circumstances specifically set f'or'th in
the Ac;recmcnt, not otherwise. Article I, Section 4, descri:OC's
one condition which permits carriers to lay off protected em
plo'Yce'. ,1.t C_·.oS not contain any rationale for avoiciing t'i1G
notice requirement. The notice is a condition precedent to
all layoffs which are based on this provision.. There is no
other interpretation or construction to which Section 4 is
susceptible.,

As to the form of notice, posting on bulletin boards does not satisfy the requirements of Section 4, which provides that "notice will be given to the employees affected." Posted notice, when employees are off duty and not apprised of it, does not satisfy the mandate that it "be given" to their,.

To the extent that Award No. 115 was predicated on the temporary suspension of positions rather than their abolishment, it failed to take the actual language and evident intent of the Agreement into account. Such distinction does not appear in Section 4, which permits force reductions only after notice. If Section 4 were not the source of carrier's action, then a force reduction of protected employees due to a strike was not permissible at all. Not a word in this provision anticipates that carriers could lay off protected employees without notice, whether positions are temporarily suspended or abolished..

The sentence requiring no,-.ice stands alone, unlimited and unqualified, and must be applied to all Section 4 layoffs. To hold otherwise is to confuse an absolute mandate with extraneous concepts not found in the Agreement or in the parties' obvious intent. It would be unwise and unjustifiable to compound oversight or palpable error in a previous a~::ard by following it and creating a longer line of such precedents.

A W A R D

Claim No. 1 and claim No. 2 are sustained.

:, ice! ~:L W .--

Milton F euman, ..eutral Memaer Washington, D. C. January ),o, 1970

_4_

DISSENT OP CARR llllt ITNASRS OP SPECIAL WARD OF ADJUSTii:Ll'C

NO. oi.'.i'L(> f>'~':'1:7'J1965 FEWUARY

-i·:U. 2(,`.^_._(CA 7 ! I 7WSC-2i;-I·:)° e·.Ga;:::L?::i f.:

, --_-__.

_ - _-~_,

--------------

The Carrier Members of this Board are of the opinion, that Award No

..t., Docket SC-23-E, ftefercce Milton Friedman, duas ant represent a proper
interpretation of Article I, Section 4 of the February y 7, 105 Agrcexnnt and
we ir,ast, accordingly, dissent.

The primary issue covered by this case was previously resolved by our Awards 115, llu, 1.17 and 113, favorable to the Carri.^r's position. Those cases held, in essence, that where the contracting parties mutually a7reed to suspend positions elfertive with the commencement of a strike, the provi ,un, ott Article I, Suction 4 requiring sixteen hours advance notice hid no appl: caLion. ahis, tot the obvious reason that the purpose of the rule: `:ad bean sorted by the mutual understanding.

In this case the mutual understanding, was reflected to the letter Wei July 14, 19,17, and as the Referee now states: "the substance of the understanding was unchallcnged." The July 14th letter contained the following statement:

'This confirms our understanding that except as thcs`___:ol.ovnay be otherwis:,_notified,, all existing position.:, ~ 711 La tc:ypnrarily su3pended effective at the beginning and for the duration uf. the strike. (Emphasis supplied)

This und:=rstnndinE was clearly intended to eliminate any further contrnct,ial requirement for advance notice to the employes o- iho suspended positions. The only exception was that contained in the understandfn ; itself. W contracting parties agreed when the suspension would be effective, Lu wit: ' it the c-van; of a strike by ~Fioo-Craft employes subsequent to 12:(,1 A.M. on July 10, 1967" ·-;id at the beginning an! for the de_atirn of tile strike.'

The 11afcrae finds that I-_ticle 1, Section 4 of the February 7th Agreement allow,; Carrier to reduce forces ci protected employps under e; "r-
· ncy conditions. 'III.^. Carrier can do this "nila;e_-_ally Pr_o_v_'dip it gives
the pce;cribed notice. However, the diffacences betw:>en the C:rriur4 uni
lnvara_1 _d.;oli:a~:-_:_e^.t of position<; with the coucimitanL responsibility of 7ul
filli:; tho sfM,t~:^n hours notice, :;s distinjuished from r. suspension <:f no:i
tion s by co_ntract_"al unders_fandit~, was a wifference whisk the Referee who
rencerad: ;wards 115, et al, ;ould understand and accept. The rationale of
&warns Jib, et a1, is oottonna on the singilar fact th,t there is a sharp
cistinctron between .a suspension of positions by agreement and abolishment of
pOSltlOPS by the unilateral act of management.

This same distinction is that which underscores the difference between the facts of this case and the facts of those awards cited by the Organization, from the Third Divis.on. The Referee's failure to grasp that distinction served as the underpinnings fur his error in this case.
1t. should be obvious that t-._ cuntractin;·, partie-a h-t»., a p:,rfect right to agree to suspend positions - on and .ts of a dale ff;:,:d by a conditinn s;%,sequent - i.e,, when the strike occurs - and such a suspcncion, by aw_:tual un3^r_.tan::i.:,:,;, was clearly intended to relieve Carrier of the^. obligations imposed by the February 7th Agreement.

The Referee's decision on the question of whether noti^c hosted on a bulletin board meets the requirements of Prticle T, Section 4 and his conclusion that it did not, is also in error. Here again, a decision from the _axe property involving the same parties, was determinative of tae issue. Awai:d 72'41, Third Division, submitted to the Referee, concluded on this precise question, as follows:

"Claimants have pointed out that oral notice was received by them soar. hours after the official, posted notice. Snme were notified directly at 7:00 P.M., P~zy 9; others were given such pcrsonal notice at 0:00 A.M., I"ty 10, a:~d a fee) received such notice as.late as 10:00 A.M., llny 10. The Agreement doe:: not specify that personal or oral notice is essential. An~l_i·__. is not for us to add such a sti nl,-ttion." (Emphasis supplied)

We have added the emphasis because it is quite apparent the Referee i.~:,~_ed that basic admonition in this case. Moreover, the Referee's attention w.-,
·~·ited to Awa:d 14997 (Third Division), from the same property, which held rhat_

"Under the circustances, it is clear that Claimant's position was not: 'abolished' is the strict sense. Tt was, pursuant to the te~;ns of the agreenL·nt, suspended and unfilled for the duration of the strife.

"Further,_t_he_C_latria_nt_h_ad 'constructive notice' of ·:~_~. a^rcement, a^d such notice was_;11 that was _requir~d."-.- y (Emphasis supplied)

i'oreover, the claimants had ;.:ere than constructive notice of the AEreer:ont to susr:nd positions in this case. The fen_-~al Chairman vas given a copy of the notice and was advisa^d i.~t the Jul,,, 14t,'i 7.etter it wns to he nostad on 217 hnl_Iet_in t~o~rda If this; t:as not in court ~lancc· with the February 7th Agr.^r.:ent as later argucd·by the Organization, or in accordance with the m.itual und^crstLnc'iag of the parties, the General Chairman had an ohli;;ation tl,.en to so state. His failure to c?o so, should have been considered by the Refere~·-'~:' a relevant factor in determining whether proper notice was giver..

It is the Carrier Memhers' belief that Award 200 fans to make a convincing case for refusing.; to follow the prior precedent on this Board and unfortunately i.t has only succeeded in =eatin:· further controversy arrl_disuutc· on an issue which had presumptively been put to rest.

For these reasons, we dissent.

C.r er Mc:mbcr

~/~ !2iL-j

Carrier Member