C:\AWARDS\OUT\sba-605a321.htm

AWARD 140.

Case No. CL-90-W (TC)

SPECIAL BOARD OF ADJUSTMENT NO. 605 PARTIES ) Chicago and Illinois Midland Railway Company TO THE ) and DISPUTE ) Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes QUESTIONS AT ISSUE: 1. Did the Carrier violate the February 7, 1965 Stabilization of Employment Agreement when it refused to pay T. J. Rodden his guaranteed compensation for the months of October, November and December, 1970, Jan uary, March, April and July, 1971? 2. Shall Carrier be required to compen sate T. J. Rodden in the amount of: October, 1970 - $ 11.59 November, 1970 - 162.76 December, 1970 - 329.21 January, 1971 - 343.64 March, 1971 - 161.29 April, 1971 - 94.52 July, 1971 - 139.01 plus all wage increases, plus 1% interest per month commencing sixty (60) days from date of claims? OPINION OT 130ARD: A request for ,inierest specified in Question No. 2 has been withdrawn, and the Quest9,on is deemed modified accordingly. Claimant was denied protected compensation on the ground -that a decline in business, as described in Article I, Section 3, of the February 7 Agreement, justified a reduction in force. Two facets of the issue must be resolved. One is the organization's contention that appropriate notice under Section 3 was never given. The other is the organization's AWARD NO. 3 Case No. CL-90-W (TC) Iwo denial that Carrier actually instituted a reduction in force, even if it had the right to effectuate one under Article I, Section 3. An appropriate decline in business does not automatically produce a reduction in force. It simply justifies that step if Carrier takes it in :accordance with the Agreement's requirements. One requirement is for notice. Section 3 specifies: Advance notice of any such force reduction shall be given as required by the current Schedule Agreements of the organizations signatory hereto. Article 7XI of the schedule agreement provides that there shall be at least five--days' notice "before the abolishment of a position or reduction in force." According to Carrier, since the same notice is required for both situations, once it is given for one it is applicable to the other. Claimant did not receive notice that he was being denied pro- tection as a result of the operation of Article I, Section 3. r/ Rather, he was displaced in January, 1970, as part of a chain of displacements produced by the abolishment of a position, and he wound up on the extra list. The notice provision in Article I, Section 3, is specific and direct. It does not anticipate that an employee will be a6vised that his position is to be abolished, bet that he :gill be notified of a force r,-duction of protected employees -cui6'ar that Sectic,n. An employee is not expe :t^d to assume or infer that he is being denied pritected compensatlin thereafter. He must be z:oId at least five 3.als in >3vance thFtt his 1ansfi-ts w_e suspended by virtue of the ye';evant provi,--ion,. However, claima.=a was not so advised in January, 1970, when he was displaced, nor in the following Novembar, which was the month of his first claim for protected compensation. Actually Claimant worked with considerable regularity from January, 1970 on. He was not involved in a force reduction, although he went to the extra list, working from -2- ~MI AWARD NO. 3'~ Case No. CL-90-W (TC) there instead of on a regular position. Thus there appears to be merit in the Organization°s stance, as stated in part in its letter to Carrier dated November 3, 1971: ocThe above employes remained in Active Service as part of the Work force of Protected Employees and performed service for the Carrier. A Carrier cannot continue to work all protected employes and withhold their guarantee. What Carrier 'has sought to do is "reduce forces," because of a decline in business, simply by denying protected benefits to employees who ramain a>> work. The February 7 Agreement, hozrever, does not: say that a numhPr of employees may be denied their benefits i,n proportion to a decline in business. Instead, it empowers Carrier to reduce the force of protected employees and to deny them benefits meanwhile. Carrier may reduce forces either from among those holding regular positions or those on the extra list, but it cannot retain employees in either group at work, and yet deny them protected benefits in months in which they fail to earn their guarantees. A reduction in force is not some abstract bookkeeping device, but a concrete diminution in the working force because fewer employees are needed. A reduction in force does not occur because on some particular day an employee on the extra list recv ivea no assignment. Removal either from regular posjtons or from the extra list because there is no need for the services of the employees is what constitutes a reduction in force. Article I, Section 3, cannot be used to make parttime workers of protected employees, thereby denying them their nenetts. For, aside from other considerations, that provision requires five days advance notification whenever a force reduction is effectuated: "Advance notice of any such force reduction shall be given as required by the current Schedule Agreements..." (Underlining added.) -3- AWARD No. 3.z/ Case No. CL-90-W (TC) Carrier can employ the decline-in-business formula to reduce forces only after the advance nc-':-ce is given, whether the force reduction is made once a week, once a month or once a year. Notice giver. at one time does not last forever. if employees are brought back to work and they subsequently again undergo force reduction, they must receive notice again. Protection cannot be removed from an employee who continues to be employed. It is due him until he is actually let go under Article I, Section 3. That never occurred in Claimant's case. He worked every month from the date of his displacement and, from all indications based upon his monthly earnings, at close to full time for most of the period. Further, abolishment of positions is not covered by Article I, Section 3, although this is what actually occurred in Claimant's case. The Agreement deals with individuals, not with positions, and the two are not synonymous. A carrier may abolish a particular position and yet not reduce its complement of employees at all, by hiring in other positions. Or it may reduce forces without abolishing positions by virtue of a t trition or by cutting the extra list. Thus, notice of abolishment of positions is not the notice required in Article I, Section 3, nor is abolishment of positions anticipated by that provision. Article IV, Section 5, establishes all the conditions under which compensation need not be given a protected employee. The following extract is relevant: ...nor shall a protected employee be entitled to the benefits of this Article IV during any period when furloughed because of reduction in force resulting from seasonal requirements ...or because of reductions in force pursuant to Article I, Sections 3 or 4... (Underlining added.) Thus it is apparent that furloughed employees, who have been laid off pursuant to Article I, Section 3, receive no benefits. But non-furloughed employees, employees who are -4- AWARD NO. 3 Case No. CL-90-W (TC) kept at work, cannot be deprived of their protected compensation. The quoted portion of Article IV, Section 5, plainly excludes from benefits those who are furloughed because of reduction in force, pursuant to Article I, Section 3. It does not deal with loss of protected compensation when there is an abolishment of a position. Carrier's assumption that protected employees can be denied benefits while they work from the extra board could lead to absurd results. A junior employee on the extra list on October 1, 1954, protected under Article rd, Section 2, obviously would contin·ae to receive his gaara.,ntee so long as be continued to w:rk from the extra list; that is how he was protected orlgl-z11y and he ^ould not be denied hj.u protection unless he were iurloughed pursuant to Article I, Section 3. Yet an employee like Claimant, who may be senior to him, bumped to the extra board, would receive no guarantee at all-although the latter may work considerably more than the former. Reference was made by Carrier to Award No. 215 of this Committee. It is distinguishable on its face, since the denial there was predicated upon a carrier's use of employees' services in another capacity. Employees in the ticket office and related departments "were able to secure other jobs as mail handlers in the carrier's service." However, while Claimant moved from a regular job to the extra board from which he worked quite steadily, nothing in the record indicates that he was used "in another capacity," than his customary one. Whatever the parameters of Award No. 215, it does not suggest that protected employees may be employed to perform their customary duties and yet be denied protective benefits. A W A R D The Answer to Question Nos. 1 and 2 is Yes (exclusive of interest). i ry~,Z Milton Fri dman Neutral Member Dated: October /~_, 1972 Washington, D. C.