PARTIES ) The Chesapeake and Ohio Railway Company
 TO THE ) and
 DISPUTE ) Brotherhood of Railroad Signalmen
 QUESTION
 AT ISSUE: (a) Carrier violated current provisions of
 the February 7, 1965 Agreement, particularly
 Section 1 of Article 1, and Sections 2 and 6
 of Article IV, when Claimant /E. T. Toothma2n
 was furloughed close of vacation day November
 12, 1971; and, as a result,
 (b) Carrier should hereafter offer Claimant
 employment equivalent to his base period as
 defined and contemplated in Section 1 of
 Article I, and Section 2 of Article IV; and that
 (c) Carrier provide us with Claimant's base
 period of compensation earned during the last
 twelve months in which he performed compensated
 service immediately preceding the date of the
 Agreement - February 7, 1965; and that
 (d) Carrier compensate Claimant for all loss
 of earnings which are less than his protected
 monthly base rate due under Section 2 of Article
 IV. In addition, Carrier should make necessary
 payments in order to make Claimant whole for any
 and all loss, including payments towards his
 Railroad Retirement, C&O Hospital Association
 dues, Travelers insurance, and credit for loss
 of time toward vacation and/or holidays! and
 (e) Inasmuch as this is a continuing violation,
 said claim is to cover period of time until
 carrier takes necessary corrective action to
 comply with the above violations.



OPINION
 OF BOARD: Claimant, a protected signal employee, was furloughed
 during the strike of longshoremen and coal miners
 in November, 1971. The organization contends that Carrier has
 not established justification for this action under Article I,
 Section 4, of the February 7 Agreement. Carrier maintains
 that this provision of the Agreement supports the layoff.

 Article I, Section 4, permits force reductions in emergencies, such as strikes. It also conditions force reductions on the provisos "that operations are suspended in whole or in part," and that the worjc "no longer exists or cannot be performed." The Agreement consequently does not anticipate that, whenever there is an emergency, carriers may use it as the basis for furloughing protected employees. Not the emergency as such authorizes the layoff, but compliance with the provisos. All of Article I, Section 4, must be applied and each requirement must be met. These are factual matters which must be established by evidence, not by assertion, conjecture or probability.

 Otherwise, whenever there were an emergency, a carrier could use it as a device to reduce forces of protected employees who otherwise must be retained in compensated service under Article I, Section 1. hence the significance of
 the requirement that the work no longer exists and cannot be ~/,
 performed. For, if there is no established disappearance or
 dim.?nution of work due to the emergency, protected employees
 must continue to be compensated.

          Carrier's letter of February 2, 1972 simply asserts:


          ...The furlough of Mr. Toothman was the direct result of the Carrier's operations being impaired and/or suspended as result of the strike of the coal miners and the strike of the Longshoremen at the East Coast ports. Such furlough was made under the conditions set forth in Section 4 of Article I of the February 7, 1965, Agreement...


Nothing was submitted in evidence to establish what specific effects the strike had on the need for Signalmen. The evidence does not even indicate how long the strike lasted and when the "emergency" ended. Carrier's submission noted a

                          _2_


                                                      VMW

                                AWARD NO.

                                Case No. SG-32-E


decline from about 21 trains to 12 in the division in which Claimant worked. It was said that the reduction in trains caused the reduction in the need for Signalmen and that 6 of the 32 positions, including Claimant's, were abolished.

 Although Carrier contends generally that a reduction in trains produces a parallel reduction in signal maintenance requirements, which the organization disputes, evidence on the point was not submitted. Questions of the relationship between the two were not resolved either on the property or in the submissions.

 Specific evidence is needed to establish what the strike's effect was on the need for signal employees. This is mandatory in order to prove that the work no longer existed, in fact, or could not be performed, in fact.

 There was no adequate answer to the General Chairman's letter of February 16, 1972, which stated, in part:

          ...Carrier's operations were not suspended as a result of emergency conditions listed therein occurring on the property. Furthermore, the alleged suspension of Carrier's operations was not to the extent that claimant's work no longer existed or could not be performed. A strike by coal miners and longshoremen did not cause claimant's work to no longer exist or prevent it from being performed...


Particularly with a craft like this, Carrier must show more than a decline in the number of trains to justify fewer signal employees. Obviously a decline in the need for employees may occur without an emergency. let Carrier's obligation to protected employees persists. ;-that Carrier must do, but did not in this case, is to actually shca the connection between the emergency and the reduction in force by reference to the disappearance of the work or to the possibility of doing it.

 But so long as trains run, even in lesser number, and signals operate, Carrier cannot reduce forces of protected employees simply because a strike has produced a decline in business. It proves nothing that Carrier has laid off employees and still manages without them. Protected employees must be kept on, unless the work disappears in an Article I, Section 4, situation, and it is the latter which must be proved.

                          -3-

                                AVIA2D NO. 311

                                Case No. SG-32-E


All that Carrier did on the property was to quote the requirements of Article I, Section 4, and note the existence of two strikes. It then asserted that "the carrier's operations were suspended in whole or part." Where, when and how remain unidentified.

 Carrier points to Rule (b) of the collectivebargaining agreement:

          The number of assistant signalmen and assistant signal maintainers on a seniority district shall be consistent with the requirements of the service and the signal apparatus to be installed or maintained.


That provision has significance for the number of employees Carrier ordinarily must employ. It is not applicable to protected employees for whom compensation is mandatory, even if there is no work for them. The only exceptions in their cases are to be found in the February 7 Agreement.

 In various crafts the number of employees required during a strike may be proportionately related to the number of rains running. That is not the case of this craft. In Ar~icle T, Section 4, an automatic equation of fewer trains and less signal maintenance needs is not applicable, unless it is proved that the work is not there to be performed.

 The claim therefore should be sustained. Claimant is entitled to compensation for the period he was laid off, from November 13, 1971, until he was recalled to service. However, this Committee has no jurisdiction over other claims cited in Paragraph (d) .

                        AWARD


              Carrier shall compensate Claimant at his protected rate from the date of his furlough, which was effective


                          -4-

                                    ASVA:ZD NO.

                                    Case :;o. SG-32---


              November 13, 1971, until the date his protected compensation was restored.


                        Milton Friedman

                        Neutral Member


December 11~: 1972

Washington, D. C.