SPECIAL BOIN~-T) O,· d~D,TF~_7 ~_r-;;: 1',0. 605
PARTIES) Brotherhood of Railway, Aiili^ red Sbeaal:hip ClnrLs,
TO ) Freight Unn;1lcrs, E:cpo©sc~ & Station n23,loyes
DISMs03) Vnd
Alebnsa, Tennnsse rend 1'arthsrn Railrcnd ~r=~:y
Qdi~ a'TOia:3
AT ISSL2: (1) Did the Carrier vlol.=to
01o
Faro.°iaic^a
Gf
the e$blunyy 7,
1965 Agrce :ant, p' rticulcVly Article I, Soctiou <>, t1: reof,
rhcn on August 1.8, 1963 Cl-ir~nts zore n;at give sll:teen
hours c0va^.'_---e n-~sicc tbae thcir poE3ztiors could not be
corl.d dug
to tho
etor<l l;r::a me "Eurricaz_3 CEil1EJ.~
(2) Shall the Cnyrier brequired to pay tho follo;°ing nrc.wrl
emplaYe® cna
dry's
pay at stralghht
tir,A at th-a rcte
of the.;r
respactivc posttioaa ns indicated bolo-:-):
Clef.
Tat ponitio-a Rate
of Pal
C. H. Rca·:as Rate=Bill. Cl-·rh
$2$.7001
L. F.
lwnig:lt R°port-Ciork ?.6.9036
F. F. Hodgcs Yard-Bill Ct-ors 26.5050
D. C. Pr.pp Assistwnt C.°a'Aicr 27.105
B. A. Platt Steno-Clatle 26.1.:37
H. M. rcGinnio Chef Cler"--C~bier 30.707.3
A. W. Yoseley ~al;c:-gill Clerk 28.7001
OP IUION
CF E-OAMU: Several d:lyj prior to
M-Bar
18, 1969, alort T.;^rnings r:nKo
1°
ceived of tile ime2ndiIl;~nrri:v=1 of
linrricFne Cr-Eaille.
P;--cessrry
precaution a were tal"n by th> Carrier to evacuato cars --rd sz-juip
ff_int
from its 111:hile `'·_''-_°.9.'d to bt-'err
r~rou^Sd.
After r ;no hurricano
had psssad throu-'j th a e°-,ca,
t.13
Clnir ;..=-s al
lLg·1
tl.ny rago::ae:l foe duty oa
,
A!Eyl!^u:: 18. Cn 0:.Z d.^;y, t1!L f1O5t c.a"
£C4a:ui:.~ 'Yr.a,,,.-f.z£E^a
ddd i`..',.
~I':.1'nw?9 f:.1s°
vice, alth®:Esh fli,3
third
'6nl'iek C:-3 ii%3Eizood
to retaeil Csre to the.'.;eS.i.l.)
°Y"~Cd.
The inc-1;8nt
fiidyL'.f.v
aeGa8
%V 't~.,:,52.~I1
fps
Al--L13t
18,
jndpWt!ha
i^£-· tbat
rli<"':)its foal^11
to F:)ioT:n any/9~.rvic3'
The substnvo of tl.~ t~tct~t c1.ne,,,,, op argued by tho ~xgalii~;utl.o~a,
is based cu the fc:i,lu-~a ob th-3 Ca:ni~r
n
gi`:e
a
In
sia tcon hours acrvunce eetic3
as required by Article I,
ScctLin 4, of ch.: Mrua.::y 7, 1905 Agroe~W~L. In
reality, tharo
ai·3
Lao qv-stions bcfora us.
The
first involves S~ctica 4 of
Article I, and the second presents a qrasiaon of fact which will be discussed
Subssqu~intly.
The pertin~,-lt iorf:oa of
Artlclo I, section 4, of the Fcbsu·,s^y 7,
1965
A3IG-L'Bnt,
is hvrainaftes qG_·ted·,
"Notwithstanding other provisions
of
this
Agreorynt,
a carrier shall b a-;a the right to walca force reductions under o^ve"Ancy conditions such as flood, snowstorm, hurricane, earthquake, fire or strike, provided
Award
No. 247
Case
No.
CL-18-SE
_ 2
that operations are suspended in whole or in part and
provided further that because of such emeergencies the
work which would be perforccad by the incur,-:bents of the
positions to be abolished or the work which would be
gorfoa;ad by the cdq)loy as iisvolvGd in
t1
ac
fOTct3
rcdzaa
tions no longer exists or cannot be peiforc:,rd. Sixteen
hours advance notice will be given too the employees
affected before such reductions are rude."
Initially,
x~3
will concern ourselves with the apparent thrust of
t=e Organization to the effect that Car:eier failed to give the required siU_tez^-.n
hours advance notice. Without doubt, the Carrierr is granted an unqualified
right to =,ka force reductions uader the emergency conditions sp~?cifically
spelled out in Saction 4, and the provisos th::reto. This, the first query is
whether a Carrier is compelled to avail. itself of the grant of this pos:~3r.
Stated differently, is it mand:ioxry or optional for a Carrier to m~l:e force reductions upon tho haproning of an event sp"ifi.rally dnfin:d in said Section 4?
Can a Carrier refrain from making force reductions under such conditions when
work rec;3ins to be p~,rforz::id?
In our opinion, it is the Carrier's decision which is the determining factor. It is
the Carrier
~·tiieh vas granted 0-at option. Hovsvar, we
would caution a Carrier to exercise such option cp~efully. Hance, we are required to recognize that Section 4 of Article I, provides an escepa hatch for a
Carrier faced with the specified condit:tons con%sirsd therein--to avail itself
of the opportunity to extricate itself from paying employees for non-prrfor~-nce
of work where the work no longer exists or cannot be parformsd.
The s^cond aspect of the instant dispute is concerned with a
factual qtzstion as to whether or not the Cisisnzts reported for duty on Au3ust
18, 1.969. The Organization ells-gv$ as follows:
"On August 18, 1969, the clabn data, after the hurricane
had paL:acd Ozrovgll ::, a area, the c1.-i_,: ,;ts reported for
duty a::d found eha Ai'6°7 propeaty in a flooded ccnditian
and no uLp-_rvismis to
iS~.3s"~:$
C.'%c%
--5
to &'a°t service
should or should :=:;t be ~-. ~for~r;3 amyl
th.::Le
was no telephone sorvice available as it was outs of -~a:~h::r end ell
grains roving into and out of the yard had been
suspsaded - - -°
"_
_ _ elaimnts did report for duty but ware pre-aanted
from performing "rvico because it was readily app;.?eat
that tho Carrier's operations had bean shut down and
there was n0
GGrk
for the cl.:?io2rte to p.-.,-flea on this
date."
The Cnxrtor, on
tea
other head, refutes the Orgaeizaticn's alleg:,?ion tI?at C1?~·=~7i:3 reported for duty, as follcvs:
Award No. 247
Case No. CL-18-SE
-3-
"Ilouever, none of the claimants in this dispute reported for cork on iianday, August 18, 1969."
"Ecduce of tka store and taster conditions which exa
feted, and probbly Mcausa they warn as_.able to
physically reach their point of employment, rote of
the clain^nts reported for work on August 18, 1969."
"The fact that none of the claimants rep-rrted for duty
on August 18, 1969, invoked the clear provisions of
Article IV, Section S of the Agroo_?nt reading: 'A
protected employee shall not be entitled to the beuo
fits of this Article during any poriod in which ha
fails to work due to disability, discipline, leave
of
absence, military service, ox other abseeire Srcm the
Carrier's_svrvice*^*M
(Emphasis ours)
'.the failuro
of
the employns to report was certainly nor. n ttribust
able to the Carrier,
"The Carrier denies that any of the seven claimants
reported for duty. In fact, the Organization adwits
such in the first pnragrwh on Page 3
K.^y
it state
that it was virtually impossible
to
got to the yard
office at Mile where these clsimnnf_s .:ere to report
for cervice."
"In s~:__ ~xy, tt^ Carrier states that: on August 18,
1969, each of the claim-ants failed to report for ser
vice; that had to?s=y ra,lyted, they could hove bean used
on ihair jobs PH ccAynusated accordingly."
In this poetauao, each emy socks a ^outnining award
U:1
the basis
of contrwv~i; ^d facts. ri'tthow pansy Las ?ll;waed any InKpinjant verifiable
prcnf
to
cc?lloct
if.J alln2a'tio ns, Eet'.h party, furM3rmove, asserts that mho othor
rids haj
GaL"Hon
of proof to sap; ssi its poosItton. On the basis of LI?e record
Wfove vs,
Ya
find
.i't
ir.casiblv to Werstro Mich party is star%3 the truth!.
~,ti'~ae6~·3, ·L=i f,3 facts
Were
L'._3,
wec':1v CG-.~aallid
t0
leave the part e'J n the
pnnit?on va fled
che.,
Ws will not by placed in a pcsition of laabili_, g ore side
on the oi:i=ar, ;.s having concocted staser._:nGs to
fox
its version.
In passing, tea would briefly coAmant on one of the Carvier's daMuses, an-31y,
Moot
the Ornenlauion submitted a claim to the Third Division,
peedica.,nd on a VIGMtac:n
of
the nfr'nive
Schedule Asi"n_=i:t, ^sriSi'33 from tbe
identical facts inwii,°ij hr.?in.
ftLi;Gn,
the Carrier surge=_s that our uoaid l.e^1Zs
jurisdiction of ELa i·3c;rant dispute. Vithout enlarging up :n what
·:G
have previously stated, tae could simply note eurt our Award No. 176, fully disposed of
such coatantion.
Award Ho. 247
Case Pro. CL-18-SE
-4 -
A17ARD
The answer to qu-soon (1) is ire the negative.
Quci;tlon (2)
y2r
Opieiion.
'b.~;zgay P-7~ F,e?_ :^_i
y4 iy
,vp:~i3~si1
i:_,.d.~::7't:
Dated: 1?ushing's:on, D. C.
Duns 9, 1971.