"This letter serve (sic) as a written notice to the (Track Construction Gang CH30) and all parties involved that effective January 30, 2006 (Track Construction Gang CH30) day shift time will change from (First Shift) 7:00 am-3:30 pin to a (Second Shift) starting time 9:00 pm-5:30 am. This letter also serves as a 36 hr notice of said changes in shift, per BMWE agreement Rule 10; page 6."
"One, two or three shifts may be established where necessary to meet service requirements. The starting time of any shift or position may be changed on thirty-six (36) hours notice to the employee effected. Employees working single shifts regularly assigned exclusively to the day service will start work between 6:00 a.m. and 8:00 am. The starting time for employees assigned to a second shift will be according to requirements. Where three shifts are regularly established no shift will have a starting time between 12:00 o'clock midnight and 6:00 a.m." Form I Award No. 39930
The Organization contends that the Carrier violated Rule 10 which, in the Organization's view, mandates that day shift assignments begin between 6:00 A.M. and 8:00 A.M. The Organization urges that to effectuate its desired change, the Carrier was required to abolish the day shift positions on Gang CH30 and rebulletin them as night shift positions.
The Carrier asserts that it did not violate Rule 10. The Carrier urges that it exercised its managerial prerogative and determined that there was a need to perform surfacing work on main tracks at Lake Street at a time that would minimize disruption to train traffic. In accordance with Rule 10, the Carrier argues, it served the required three days' notice on the employees. The Carrier contends that it first changed the Claimants' shifts from day shift to night shift and then changed their start times. All was done, in the Carrier's view, in accordance with Rule 10.
Both parties cited numerous Awards in support of their positions. We reviewed the Awes cited and find that none are directly controlling. Some involve changes in rest days rather than changes in starting times. Others involve Agreements with language that differs from the language of Rule 10.
There is no dispute that the Carrier gave the required 36 hours' notice. The critical question is whether Rule 10 pernvtted the Carrier to make the change detailed in the notice. This requires us to consider the relationship between the third and fourth sentences of Rule 10(1). The Carrier contends that the third sentence does not apply because at the time the change in start times took effect, the Claimants were no longer "assigned exclusively to the day service," as their shifts had already been changed. Consequently, under the fourth sentence of Rule 10(1) the Carrier could establish the Claimants' start times as required.
The Carrier's interpretation would effectively negate the third sentence of Rule 10(1). Any time the Carrier wanted to change the start times of employees regularly assigned to day service to a time outside the parameters mandated by the third sentence, i.e., between 6:00 A.M. and 8:00 A.M., it could do what it did in the instant case, i.e., purport to change their shifts and then change their start times. When parties agree on specific language in an Agreement Rule, we presume they intend such language to be given effect. There is no evidence that the parties intended the third sentence of Rule 10(1) to be illusory, yet the Carrier's Form 1 Award No. 39930
interpretation would render it so. We conclude that the Carrier violated Rule 10(1) when it changed the Claimants' start times to a time outside the parameters of 6:00 A.M. - 8:00 A.M. mandated by Rule 10 for employees regularly assigned exclusively to day service.
Our holding does not unduly impede the Carrier's managerial prerogatives. As the Organization pointed out, if the Carrier needed to alter the shift for reasons of efficiency, it could have abolished the existing positions and rebulletined them as second shift positions. Doing so would have enabled the Claimants to exercise their seniority. By acting in the manner that it did, the Carrier deprived the Claimants of this valuable contractual right. The remedy sought by the Organization is consistent with the remedy the Board already ordered for a similar violation. See Third Division Award 27848.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.