PARTIES TO DISPUTE:



STATEMENT OF CIAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when the members of surfacing Gang 5748 were compensated at their respective straight-time rates instead of at their respective time and one-half rates for the service each performed on certain dates during the period January 3, 1978 through February 12, 1978 (System File S 214-94).

 (2) The Agreement was further violated when the members of Surfacing Gang 5748 were not permitted to work their scheduled assigned hours on certain dates during the above-mentioned claim period.

 (3) Each member of Surfacing Gang 5748 now be allowed the difference between what they should have been paid at their respective time and one-half rates and what they were paid at their respective straight-time rates because of the violation referred to in Part (1) hereof.

 (4) Because of the violation referred to in Part (2) hereof, each member of Surfacing Gang 5748 be allowed eight (8) hours of pay for each day they were not permitted to work their scheduled assigned hours during the abovementioned claim period."

 OPINION OF BOARD: The Organization claims that Carrier violated the Agreement
 when it compensated the members of Surfacing Gang 5748 at
 their straight-time rates rather than at the time and one-half rate for work
 performed on certain dates during the period January 3, 1978 through February
 12, 1978. During this period, Carrier divided the Surfacing Gang into two
 segments, one worked Monday through Thursday, ten hours each day, and the other
 worked Thursday through Sunday, ten hours each day. Carrier compensated each
 employe at the straight time rate for all hours in excess of eight hours each
 day, and at the straight time rate for any work performed on Saturday or
 Sunday.

 The Organization asserts that Carrier's actions violated the Agreement which provides that, subject to limited exceptions, employes will work a five day work week, Monday through Friday, eight hours each day.

 Carrier, on the other hand, claims it did not violate the Agreement since each employe voluntarily signed an agreement to work four ten hour days straight time as a means of meeting a "legitimate operational need" of the Carrier, and to prevent the layoff of several employes. It also insists that the "double shifting" ended on February 8, 1978.


POSITION OF EMPLOYES:

























                    Docket Number MW-23038


        3. The first condition is that there must be an operational problem which cannot be met under the provisions of paragraph (b).


        4. The second condition is that the operational problem 'requires that some of such employes work Tuesday to Saturday instead of Monday to Friday.'


        5. Another condition is that the operational problem and the necessary number of Tuesday to Saturday assignments to meet it must be explained to the duly accredited representative of the employes and an effort made to reach agreement.


        6. If the parties fail to agree. the management may then put into affect the assignment it deems necessary to meet the operational problem, but it does so at its risk, because paragraph (f) gives the employes the right to process as a grievance or claim their contention that the assignment itself is improper."


The Agreement is clear that a Monday through Friday, eight hour per day work week is the contractually preferred schedule. Deviation from the Monday through Friday work week is permitted, pursuant to Rule 9 (f) and 9 (3), if an operational problem arises which cannot be handled on a Monday through Friday schedule.and if the operational requirement necessitates a Tuesday through Saturday schedule Rule 9 (4)). In either case, a five day work week is clearly contemplated by the Agreement.

 Carrier has failed to demonstrate that an operational problem existed which could not be accommodated in the Monday through Friday work week. Carrier's assertion that the work was seven day per week work is not sufficient in light of the fact that the work was previously performed on & Monday through Friday basis.

 Rule 9 (5) of the Agreement requires Carrier to explain the operational problem to the Organization in an effort to reach agreement and prevent the implementation of a Tuesday through Saturday work week. This the Carrier did not do.

 While the Carrier may have been responding to the employes' desires to avoid the layoff of their fellow workers, it is nevertheless absolutely clear and well established in prior Board decisions that an employer cannot enter into individual agreements with employes which modifies a collective bargaining agreement. (See Awards 21048, 4461.)

 Even if the four day work week were desire- .: all employes, it is fundamental that they cannot individually agree with Carrier to amend the Agreement. On this there can be no dispute.

 There is nothing in the Agreement to authorize a four day, ten hours per day, work week. To the contrary, the Agreement contemplates a five day, eight hours per day, work week.
                    Award Number 23461 Page 4

                    Docket Number MEd-2"038


Accordingly, the claimants listed shall be paid at the straight time rate for all days on which they would have been scheduled to work but did not work. All claims for overtime are denied.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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 Agreement was violated.


                    A W A R D


        Claim sustained in accordance with the Opinion.


                        NATIONAL RAILROAD ADJUSTMNT BOARD

                        By Order of Third Division


        Attest: Executive Secretary


        Dated at Chicago, Illinois, this 8th day of December 1981.