AWARD N0. 436 CASE N0. CL-74-E PARTIES TO DISPUTE:





QUESTIONS AT ISSUE :






OPINION OF BOARD :
 In February 1977 Claimants Macki, Rice, Templeton, Bates and Wetherholt
 held regular clerical positions at Carrier's Barboursville, West Virginia
 Reclamation Plant (BRP) and Claimant Newman was on furlough. All seven
 Claimants were protected employes under the February 7, 1965 Agreement, as
 amended by Memorandum Agreement of March 1, 1973. On February 4, 1977 Carrier
 issued a five-day notice abolishing the six clerical positions at the BRP
 effective with the close of business on February 10, 1977. Thereafter, the
 Claimants, including Newman, were recalled for service effective `larch 1, 1977.

On that date, BRAC Local Chairman filed claims for protected pay benefits
but Carrier denied these on grounds that the abolishments were privileged under Article I, Section 4, and therefore Claimants were not entitled to protective benefits for claim dates, by operation of Article I, Section 5. The Organization denies that a bona fide weather emergency existed which caused the abolishment, and therefore appealed the claim to this Board for disposition. Article I, Section 4, at issue, reads as follows:

      "Section 4.


          '-Notwithstanding other provisions of this Agreeaant. a carrier

          shall have the right to make forte reductions under emergency

          conditions such as flood, snowstorm, hurricane, earthquake,

          fire or strike, provided that operations are suspended in

          whole or is part and provided further that because of such

          emergencies the work which would be performed by the

          incumbents of the positions to be abolished or the work which

          would be performed by the employees involved in the force

          reductions no longer exists or cannot be performed. Sixteen

          hours advance notice will be given to the employees affected

          before such reductions ere made. When forces have been so Iwo

          reduced and thereafter operations are restored employees entitled

          to preservation of employment must be recalled upon the

          termination of the emergency. In the event the carrier is

          required to make force reductions because of the aforesaid

          emergency conditions, it is agreed that any decline in gross

          operating revenue and net revenue ton miles resulting therefrom

          shall not be included in any computation of a decline in the

          carrier's business pursuant to the provision of Section 3 of

          this Article I."


Countervailing assertions and proffered evidence of the parties places in issue the factual questions whether emergency conditions such as snow storms cause suspension in whole or in part of Carrier's operations and that because of such emergencies the work which would be performed by Claimants no longer existed or could not be performed between February 11-28, 1977. Prior awards of this Board place the burden of proof in such cases upon the Carrier as to the existence of "emergency conditions" and the causal relation
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ship to the reduction of protected employes required in the provisos of
Article I, Section 4. See Awards 342 and 422. The extent of this burden,
and other controlling principles, are set forth with particularity in
 Award No. 342, as follows:
Article I, Section 4, permits forc_ reductions in
 emar;-cies, such as :tr_::=s. It also conditions force _educ
 '" `:'a ;rcvizoa "that C-_~C=atiOns are su_-Jendcd i.- ...'?C~e
 tlon.. on
 or i:. .^.i=t, " had that tll= 4.'o_.: "n0 longer e::i=is o= Ca :.Rot
 be e %-,reement consecuan.t.1v :;cas not c4 Mate
 that, wo-:cye_ t?=_= is a:. e::=_ce:lcy, ca=r:.a_s may uce it as
 r..~ tae GcniS --C2. ~ u.a~l~'.E~1~.^_j 7rOtZCV:c:Ci en'.710yi:°. Not the a^2~- gency as suc:1 a"t:"ori'.Les t3 1 ~VC1_, but ccm71 iance ait'n the proviso:. 'A11 o: :1_=icle I, Section n, roust ba applied a-d each rec_u~_=E-.:.^.t mast 1__ ,:.et. iacse z-a fac'cu=1 -atte:s ;:pica must Je °~t~ i :?°d by evidence, not by asst=tioa, conjecture Or proza:~ilit*Y .

 Otherwise, ::.har?%-=r there l-sere an emergency, a carrier could us* it as a device to redt:ce forces of protected e'.::pl..'._:~5 t!1?O Ot^?=:l.Se must be retained in c"3-p=nsee.t°d servi c°. onda:L* _vr'C~C_~' T, .Ss='·".Oil 1. riencd~1C S;~.CIl_,_=,.^.c:?.^.3 o= the gt. _:..'lP.:a'C t.·'1_t ti?3 c:G._:. n0 lonSjc_ eJ:=sts arid can-:1t h;: p,:rios:-..add . For, i= Lhare is 11o e&tibliShad d_Sap~,laiunC°_ or dimnvit:.0'a OZ 1·TOiiC _dV3 t0 Ci1:J 8rn':C,.3ncy, protected EIA;)10YYce5 must continue 'CO ba ccmcanaa'Ced.

 On the present record, Carrier has made out a persuasive case'for the existence of a weather-related emergency, i.e., the severe winter snow storms which battered the East coast in December 1976 and January 1977. It is obvious that heavy snowfall, winds and sub-freezing temperatures created abnormal adverse conditions for operations, which were beyond Carrier's control. we also find well-founded Carrier's argument that this emergency situation did not terminate the moment the last snowflake fell or the temperature rose above freezing point. See SBA No. 605-245 and Awards 2-6412, 3-20614, 4-3424. Throughout handling on the property and before this Board Carrier stated that all scheduled maintenance and construction work on the CSO territory was
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suspended during Ja6uary-February 1977 because Engineering Department fit forces were occupied fully with emergency snow and ice removal. We are persuaded of the causal link between the suspension in part of CarrieT's operation and the resultant diminution of work for Claimants to perform a· the 31tP due to the, emergency. In our judgment, Carrier has met the burdens o! proof imposed by Article I, Section 4 and Award No. 342 of this Boa.cl

                        AVAED


    Question No. 1 is answered in the affirmative.


                            Dint E. Eisehen, Cha.irwan


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