It should be noticed in the agreed facts that more than 36 hours' notice of the change of starting time was given to the crew.

The work to be done was on a coal trestle which could not be handled during the regular morning hours because of the density of traffic at that time but could be handled beginning at 1:00 P.M. and working through to 11:00 P.M. Therefore, it was decided to change the starting time of this shift in direct accord with the second paragraph of Rule 36 quoted above. Obviously this paragraph was put in in contemplation of just such operations when the work could not be done during the regular hours fixed for the general force, and it is certainly a fair inference that under the second paragraph of Rule 36 a change of the starting time of a shift is permissible for proper operation.

The Committee, however, quote Rule 41 and state that in effect the men were laid off for the period from 8:00 A.M. to 1:00 P.M. and that they were laid off for the purpose of absorbing overtime. The very use of words in Rule 41 disproves the contention of the Committee; the men were not laid off nor were they absorbing overtime. The phrase "absorbing overtime" implies that overtime has already been performed, and paid for, and that in order to make up for this the Railroad will lay men off for a day or more, as may be necessary.

If the Beard should accept the interpretation placed on the rules by the Committee, the Board would in effect be writing new rules into the Agreement which it is admitted is beyond the jurisdiction and authority of the Board.

OPINION OF BOARD: Prior to July 7, 1943, the Claimants, consisting of a Steel Crew Foreman and the members of his gang, were regularly assigned 7:30 A.M. to 4:00 P.M., with 30 minutes for lunch. On the above date the Carrier issued instructions that beginning July 9, the working hours of the Claimants would be 1:00 P.M. to 11:00 P.M., with one-half hour for a meal period. Claimants worked pursuant to the above instructions to and including July 12, for which they assert that they are entitled to five hours for four days at time and one-half instead of straight time rate.

Disposition of the claim turns upon the proper interpretation and application of the following language found in Rule 35:

"* * * employes working single shifts regularly assigned exclusively to day service will start work between 6:00 A.M. and 8:00 A.M. * * *

"For operations necessitating work period varying from that fixed for the general force, the hours of work will be assigned in accordance with the requirements."

Considering the above provisions together, we think they mean that the employes referred to in the first quotation shall start work between 6:00 A.M. and 8:00 A.M., unless the requirements of the work necessitate a departure therefrom. Whether any such necessity exists must, in the first instance, be determined by the Carrier; but this right must be reasonably and not arbitrarily exercised, and must be subject to review by this Board. See Award No. 3012.

The joint statement of facts discloses that the Claimant's regular hours were changed by written notice which recited that the 1:00 P.M. to 11:00 P.M. hours would remain "in effect until repairs are completed at Coal Handling Facilities, New Engine Terminal." The Carrier further states that "the work to be done was on a coal trestle which could not be handled during the regular morning hours because of the density of traffic." We think this showing was sufficient, prima facie, to justify the Carrier's conduct and to case upon the Petitioner the burden of rebutting the showing that the change of starting time was not reasonably necessary. That burden the Petitioner has failed to discharge. On the contrary, it relies upon

Rule 41: "Employes will not be laid off for the purpose of absorbing overtime", which has no application to this controversy.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing thereon;

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Carrier did not violate the Agreement.

AWARD