On Monday, December 4, 1989, a Carrier supervisor informed the employees working in Palestine Division Gangs 2893 and 2905 that they were to start working eight hours per day, five days per week effective immediately, and without giving a fifteen day notice. Prior to this time, the employees in these gangs worked four days, per week, ten hours each day.
The organization filed a Claim, alleging the Carrier violated the Agreement by failing to give the employees of Gangs 2893 and 2905 fifteen days notice of the change. To support its contention, the organization points to the Memorandum of Agreement signed on August 7, 1974, which states:
In response to the organization's argument that it violated the Agreement by failing to provide a 15-day notice before changing from a four-day workweek, ten hours per day, to a five-day workweek, eight hours per day, the Carrier acknowledges that the change occurred, but maintains that some of the Claimants bid on these gangs and were assigned to the positions after reviewing bulletins which clearly stated that the gangs were working eighthour days with Saturday and Sunday a asserts that the Organization acquiesced to this change because it failed to file an exception at the time the bulletins were posted.
The organization argues that whether any of the Claimants bid on jobs that were posted as eight-hour days, five days a week, is of no relevance. What is of importance, according to the Organization, is that the majority of the Claimants had elected to and did establish a work week of four days, ten hours per day, in accordance with the Agreement, and that the Carrier violated this Agreement. The organization denies that it acquiesced to the change in workweek.
The Carrier contends that the Claimants were fully employed throughout the claim period, therefore, they did not experience any wage loss. Further, the Carrier maintains that by working a fiveday workweek, eight hours per day, t compensation they would not have received had they been working ten-hour days. The Organization asserts that the payment of overtime to Claimants on some days when they worked more than eight hours cannot validly be construed to excuse or mitigate the Carrier's violation of the Agreement. Further, the organization Form 1 Award No. 29542
contends that the Carrier increased its liability toward the Claimants when the Claimants were required to work more than forty hours each week by being required to work eight hours on Friday's.
The Carrier asserts that the claim is excessive. The Carrier points out, first, that there is nothing in the Agreement which requires that a penalty be paid if a violation occurs. Second, the Carrier argues that the Organization's claim is excessive because at least two employees bid on the positions knowing they were bidding on a five-day schedule; and because seven Claimants were on Leave of Absence, while two other Claimants were on vacation during the claim period. Third, the Carrier asserts that the Claimants were compensated eight hours at the straight time rate on the days the organization contends were rest days; therefore, the maximum Claimants could be awarded for those days should be eight hours at the half-time rate. The organization submits that the Board is not barred from sustaining the instant claim notwithstanding the claimants were working and the Agreement does not mention a penalty for such violation.
The Board finds that the Carrier violated the August 7, 1974 Memorandum of Agreement when it unilaterally went to a five-day week without serving a fifteen-day notice. The remedy shall be constructed in the following manner: For each Claimant, a determination shall be made of the daily earnings the Claimant would be entitled to receive on the basis of ten hours per day, four days per week. For each fifth day worked during the workweek, Claimant would be entitled to pay at the time and one-half rate. From such entitlement, the Carrier can deduct the actual earnings received by the Claimant on that day. The Carrier also may reduce its liability with respect to any Claimant that Carrier can demonstrate was not available for work on one or more of the Claim dates.