AWARDS 76 - NO NOTICE OR LATE NOTICE OF JOB ABOLISHMENT TO GENERAL CHAIRPERSON

Fourth Division Award No. 4294 (Muessig)

"The threshold issue before the Board turns on a procedural contention advanced by the Organization with respect to Rule 14(a) of the parties' agreement. The pertinent language of that rule reads that:

"`In the event a Carrier decides to abolish a Yardmaster position *** such Carrier shall notify the general chairman thereof by telephone (confirmed in writing) or telegram not less than ten calendar days prior to the effective date of abolishment.'

"The Organization essentially contends that the Carrier did not call its General Chairman, nor did it receive telegram notification as required by the Rule.

"For its part, the Carrier asserts that it attempted to call the General Chairman without success on August 26, 1983. It then transmitted a Company wire on that date to the Yardmaster at Lexington, Kentucky and mailed a copy to the General Chairman.

"However, the General Chairman contends, with respect to the phone call attempt, that he or his family were at home continuously from August 26 through September 4, 1983, and that he worked his regular assignments beginning August 26 through September 4, 1983. Accordingly, the Organization questions the efforts made by the Carrier to contact him. The Board notes that the Carrier essentially did not refute these assertions by the General Chairman with respect to the phone call issue. Concerning the Carrier's wire, the General Chairman denied receiving a copy of the Carrier's wire of August 26, 1983 until he received the Carrier's denial letter of September 28, 1983, which had a copy attached.

"The Board finds, on the evidence of record, substantial support for the procedural arguments. The Carrier has access to records which would have shown that the General Chairman was in a duty status on August 26, 1983, and the days following, so that it is beyond reasonable doubt that he could have been contacted by the Carrier. Turning to the Organization's contention that it did not receive a copy of the Carrier's wire until September 28, 1983, absent a showing in the record to the contrary, it must stand.

"While this Board does not wish to construe a contractual provision of the parties' agreement in a manner that would lead to unrealistic results or frustrate its purposes, the controlling language, agreed to by the parties, is clear. It requires that a `telegram' be sent. The agreement does not provide for other means of communication such as Company wire or other forms of electronic communication. A telegram is timed and dated by an independent, uninvolved party and normally carries the required validity that is desirable to protect the interests of both parties.

"Under the facts of this dispute, the burden falls upon the Carrier to show that ten days before September 8, 1983, it notified the General Chairman `by telephone (confirmed in writing) or telegram'. It failed on both counts."

Fourth Division Award No. 3211 (Lieberman)

"On December 17, 1973 Carrier issued a Circular abolishing six yardmaster positions effective December 21, 1973. As a result of the action described in the Circular Claimants were unable (either through displacement or abolishment of their jobs) to hold regular yardmaster assignments subsequent to December 21st. On January 2, 1974 the positions which had been abolished were re-bulletined. The positions, according to Carrier, were initially abolished because of a General Motors Company holiday shutdown which ran from December 24th through January 1st and the fact that the positions were primarily to service the General Motors plant.

"The Mediation Agreement A-9288 dated February 2, 1973 provides in pertinent part:

"`In the event that a Carrier decides to abolish a yardmaster position covered by the rules of a collective agreement between Railroad Yardmasters of America and a Carrier party hereto, such Carrier shall notify the general chairman thereof by telephone (confirmed in writing) or telegram not less than ten calendar days prior to the effective date of abolishment. If requested by the general chairman, the representative of the Carrier and the general chairman or his representative shall meet for the purpose of discussing such abolishment.

"`Nothing in this Agreement shall affect existing rights of either party in connection with abolishing yardmaster positions.'

"Carrier states that the Carrier officer responsible for the abolished yardmaster positions did not believe that the action he took came under the Mediation Agreement, above, since he interpreted that Agreement as being applicable to permanent abolishments only and this was only a temporary move. While Carrier in its submission recognized that the Mediation Agreement did not distinguish between permanent or temporary abolishments, it felt that the second paragraph of the Mediation Agreement gave it the unhampered right to abolish the positions. It argued further that in view of that provision, the results of this instance would have been the same whether or not the General Chairman had received ten days advance notice. The Carrier felt that in this instance there was nothing to discuss with the General Chairman since the work of the abolished positions was merely suspended during the holiday shutdown.

"Petitioner, while pointing out that identical issues were disposed of in Awards 3054 and 3056, argues the importance of this dispute in that it represents an attack on the intent of the parties in the understanding codified in the Mediation Agreement supra. The Organization contends that Carrier's right to abolish positions, protected in the second paragraph of the Mediation Agreement, is in fact conditioned on Carrier notifying and meeting, if requested, with the Organization's representative, and the Organization considers this an important right.

"We find Petitioner's arguments convincing. Carrier did not in this case notify the Organization as required by the Mediation Agreement. The fact that the decision might not have been altered and the positions would have been abolished in any event, is not relevant, and is at best merely a hypothesis. It is clear that Carrier violated the Agreement; the Claim will be sustained."

Fourth Division Award No. 3802 (Dennis)

"It is clear from the record of this case that Carrier has violated the February 2, 1973 Mediation Agreement. That agreement requires that Carrier notify the General Chairman when it intends to abolish a yardmaster's position ten days prior to the date of the abolishment. In the instant case, Carrier did not notify the General Chairman of the abolishment until July 23, 1979, nine days after it took place.

"Carrier has failed in its handling of this case on the property or before this board, to put forth any arguments that would justify this Board's finding of violation in this instance but not assessing a penalty for such violation. It is this Board's opinion that the instant case cannot be disposed of without a penalty being imposed on carrier. The parties agreed at the national level that when a carrier intends to abolish a yardmaster's job, it is required to notify the General Chairman. A sense of urgency in these situations is clear, as evidenced by the requirement that Carrier phone the General Chairman and follow up with a letter or a telegram. That requirement is not insignificant and cannot be ignored by this Board when it is violated.

"This same issue has been addressed by this Board in Award No. 3056, R. M. O'Brien, Referee. We see no reason to not follow the Board's opinion in that case, as well as in numerous other cases we have decided on the application of Mediation Agreement A-9288. (See, for example, Fourth Division Awards No. 3211, 3479, 3054)."

Fourth Division Award No. 3479 (McBrearty)

"Carrier alleges that its Agent did notify the General Chairman of the abolishment of the position, and thus complied with the requirements of Mediation Agreement A-9288. However, it has not produced a copy of this letter. On the other hand, the Organization has flatly denied that it ever received such a letter. It is well established that mere allegations do not constitute evidence, and on that basis, we find that Carrier's allegation is not supported.

"We are concerned here that the Organization lost a valuable right under the agreement - a right to meet with the Carrier for the purpose of discussing the abolishments. Such contractual rights cannot be lightly disregarded.

"Contrarily, we are also concerned that the Organization could knowingly let a considerable time elapse, and then assert their contractual rights under the Mediation Agreement by filing time claims. This is contrary to the intent of the parties who in negotiating the Mediation Agreement, contemplated a prompt and orderly procedure for the parties to employ if the Organization desires to explore the abolishment.

"In light of the foregoing, we think that the proper remedy in the instant case is to award the Claimants ten (10) days pay at their pro rata rate. (See Fourth Division Award 3211)."

Fourth Division Award No. 3054 (O'Brien)

"On February 5, 1973 Carrier posted a Bulletin abolishing the first trick yardmaster position at Arlington Yard effective February 9, 1973. Said abolishment, the Organization contends, violated National Mediation Agreement A-9288 which was signed on February 2, 1973. That Agreement provides for a period of not less than ten calendar days notice prior to the effective date of abolishment of a yardmaster position.

"Carrier concedes that the February 2, 1973 Agreement was not complied with when only five days notice of abolishment was given claimant. However, Carrier insists that it was unaware of that Agreement and gave the five days notice in compliance with the Agreement it considered in effect on February 5, 1973. Carrier says that it was unaware of the February 2, 1973 Agreement until February 20, 1973 when it received a copy thereof which had been sent out by the National Railway Labor Conference on February 16, 1973.

"It is not disputed that Carrier was a party to the February 2, 1973 Agreement. We feel the responsibility for failure to receive timely notice of the signing of said Agreement must rest with it and not with the Organization. Nor can it be denied that claimant's position was improperly abolished since the February 2, 1973 Agreement changed the requirement for notice of abolishment from five days to ten days. However, we subscribe to the line of authority that holds that the proper measure of damages in a claim such as that before us is limited to the period of time which Carrier failed to properly give under the Agreement, which in the instant claim was five days. We are without authority to order Carrier to re-establish claimant's former position, however."

Fourth Division Award No. 3056 (O'Brien)

"The facts giving rise to the present claim originated in Award 3054 wherein we held that Carrier violated National Mediation Agreement A-9288 signed on February 2, 1973 when it failed to give Yardmaster Williams, assigned to Arlington Yard, ten days notice of abolishment of his yardmaster position. We held therein that the proper measure of damages was the period of time Carrier failed to properly give under the Agreement i.e. five days.

"In the claim at bar, the claimant, holding a yardmaster assignment at Tadmor, was displaced by Yardmaster Williams effective February 16, 1973. This displacement required him to return to his former class of service since he lacked sufficient seniority to hold a yardmaster's assignment. We conclude that claimant was adversely affected by the Carrier's failure to give Yardmaster Williams ten days notice of abolishment of his yardmaster assignment as was required by the February 2, 1973 Agreement. However, as we stated in Award 3054 the proper measure of damages for this violation was limited to the period of time which Carrier failed to properly give under the Agreement, which in the present claim was five days."

Fourth Division Award No. 3377 (Dolnick)

"The only violation established in the record before us resulted from Carrier's failure to give the 10 day notice prescribed by Mediation Agreement A-9288 dated February 2, 1973. The record indicates that on February 7, 1975, Carrier gave notice that the involved yardmaster position was abolished effective upon completion of tour of duty on February 10, 1975. Had a 10 day notice been given on February 7, 1975, the abolishment would not have been effective until completion of tour of duty on February 17, 1975.

"We have held that the proper measure of damages in such a case is `limited to the period of time which Carrier failed to properly give under the Agreement' (Award 3054-O'Brien) and in the instant case that is the period from February 10 to February 17, 1975. Claim is therefore sustained for the claim dates falling within this period (i.e., February 13, 14 and 15) and claim is denied for all other dates."

Public Law Board No. 3994, Award No. 8 (Suntrup)

"The procedural requirements imposed upon the Carrier by the agreement is that the General Chairmam (sic) of the Organization be notified by phone, followed up by written correspondence and/or by telegram with respect to the abolishments and clearly such was not done. There was an Agreement violation here by the Carrier. Such conclusion is consistent with arbitral precedent dealing with this contractual requirement (See Fourth Division 3211, 3802, 4361 inter alia). Relief here is granted on principle that breach of contracts cannot be committed with impunity without `...expecting the violator to accept the consequences' (See Third Division 11701, 12374; PLB 3994, Award 7 inter alia).

"On the basis of the record as a whole the claim cannot be denied.

"The claim is sustained in full. All compensation due Claimant shall be paid to him within thirty (30) days of the date of this Award."