_, NICKEL PLATE, LAKE ERIE AND WESTERN,



                        (Mw-MUN-78-21) (Db7-:qJN-78-15) .

                        t(MW

                        -CTN-78-1)

                        (MW-BVE-78-29)

                        (MW-BVE-78-27)


                          Case No. 41


      PARTIES TO DISPUTE:


          Brotherhood of Maintenance of Way Employees vs Norfolk and Western Railway Company


      STATEMENT OF CLAIM:


          Forfeiture of seniority - claim on behalf o.° B. I:. (;unn, et a1. Maintenance of Way employees account forfeiture of seniority under Rule 5(a) of the current working aarea-ent - "Pfx·uest that their failure now be overlooked and they now be retained as anployees of the Carrier.."


      FINDINGS:


      This Board upon the whole record and all the evidence finds that:


      The Carrier and the anployees involved in this dispute are respectively Carrier and employees within the meani n<: of the Railway Labor Act, as amended.


          This Board has jurisdiction over the dispute involved herein.


      OPINION:


          The claims in this case have been combined due to the ilenti,al


      nature of the dispute.


          The record shows that the Claimant-of-Record and one hurdrrd


      and one (101) other claimants were hired as seasonal maintenanc.= of


      way enployees on the C'arrier's Muncie and Lake Erie Divisions, _::itia-


      tion of such employment occurred between June and Crtooer, ly7h.

                    .. 1 Awd. /P41 - 1837


They were subsequently furloughed -in either November or Decanber
 of 1976, due in part to seasonal force reductions and otherwise
 because of a strike among coal miners in conjunction with unsuccess
 ful contract negotiations. 1drle 5(a) of the "Working Agreanent"
 requires that furloughed employees notify the Carrier in writing,
 within ten (10) days, of their interest in being recalled and thus
 retain.their seniority rights, one of the Claimants did so. Rule 5(a)
 states-that "

    "Ca) Employees aaid off by reason of force reduction

    desiring to retain their seniority,.must file with their

    superior officer, a written statement indicating their

    desire, and. setting out their address. This statement

    must be filed within ten days after being laid off:

    They must nnnediately notify their superior officer of

    any change of address. .Fmployes failing to comply with

    these provisions or to 'return to service within ten days,

    for -a regular bulletined, position after having been no-

    .tified in writing by their superior officer will forfeit all. seniority unless- a leave.of absence is obtained under

'the provisions of th-agreanent.". Since this: is. a' ^self-executing°;-pmvi.sion, ,t-e Claimants. were considered as to- have forfeited all, seniority. According to the Organization,. Rule 5(a) can only apply when it can. be demonstrated that. the Claimants are aware of this provisirnc and the requirement for notification. set forth therein. Per the Organization, none of the Claimants were furnished copies of the Working Agreement and thus' cannot be held liable here. Essentially, it asks that their seniority rights be restored and the Claimants be subject to recall. According to the Carrier, _all of the Claimants received copies of the working Agreement and merely failed to comply with Rule 5(a),

              . -2-

Awd. I#41 - 1837 assuming they bothered to take note of the requirements of that provision in the first place. In that regard, the Carrier asserts that the organization bears a responsibility to alert or remind acgployees of such a provision, particularly at time of work force reduction.
 Mule it may have been that score of the Claimants may not have been aware of their obligations, others should have and mast likely sere. We realize that it is substantially mare reasonable to expect the Carrier to prove employees were properly apprised of their obligation, i.e. by requiring signatory affirmation of receipt of the Working Rules, than to require an employee to prove they did not receive such information. It is singly not comprehensible that some such employees would not have been aware of this obligation -even had they not been aware of Rule 5(a) - via their contacts with veteran employees.
 We must raise a question; of reasonableness in this regard: if an employee was being furloughed and desired re-employment, how reasonable is it to believe he/she would not inquire how they might be recalled? There is nothing evidenced nor a contention raised that such information was withheld.
 Considering all factors here, we shall not affirm the Claims as set out. However, we shall order the Carrier to treat a request for re-employment by any and all of the Claimants with consideration.

 Aces
    Claims as set out are denied; however, the parties are re-


feed to the Opinion for further guidance and direction.
                                          Awd. I#41 - 1837


                  James r. Scearce,

                  Neutral rmber


G. C- Fxbmrds W- E. LaRue
 Carrier Manber ... ,Organization Mater

 Dated at _ ._ this J±tday of . X81 .