This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Organization filed the instant claim on the Claimants' behalf, alleging that the Carrier violated the parties' Agreement when it changed the work schedule on System Cat Gang 9153 from a T2 (compressed second half) to a TI (compressed first half) schedule effective May 1, 2006.
The Organization initially contends that the Carrier violated the September 1, 2003 Memorandum of Agreement (MOA) in at least three ways. It asserts that Section 5(d) of the MOA provides that employees will be notified at least 15 working days in advance of any change to a gang's alternate work schedule. The Organization points out that prior Awards have confirmed that such mandatory provisions must be upheld to ensure the integrity of the Agreement and the rights of the entire class of employees covered thereby. It maintains that Gang 9152 was notified by the Carrier of the compulsory work schedule change on April 11, and this change took effect on May 1, 2006. The Organization argues that the Carrier faded to comply with this requirement when it gave Gang 9153 only 12 working days' notice of the change at issue.
In addition to receiving only 12 working days' notice of this change, the Organization maintains that the members of Gang 9153 also were not given the opportunity to vote on a particular schedule that would be beneficial to them. It contends that Section 5(d) of the MOA specifies that a work schedule change will not be implemented without the written concurrence of the employees involved and the General Chairman. The Organization emphasizes that the Carrier never disputed that a copy of the notice of the work schedule change was not provided to the General Chairman, and the change was implemented without the General Chairman's written concurrence. Moreover, the Carrier never refuted the fact that the Claimants were not allowed to vote on this change. Citing several Awards, the Organization contends that these unrefuted statements must be accepted as fact, demonstrating that the Carrier simply informed the Claimants that the change would be implemented and that the Claimants were not afforded the opportunity to approve or disapprove the work schedule change. Form 1 Award No. 40335
The Organization asserts that based on these circumstances, there can be no doubt that the Carrier violated the Agreement by failing to provide Gang 9153 with proper notice of the work schedule change, by implementing the change without the employees' written concurrence, by failing to provide the General Chairman with a copy of the notice of the change, and by implementing the change without the written concurrence of the General Chairman.
Addressing the Carrier's assertion that the members of Gang 9153 were given 30 days' notice of the schedule change, the Organization insists that there is no probative evidence that the Claimants were provided with the required minimum 15 working days' advance notice. Moreover, as to the "blanket notice" reportedly provided by Supervisor Crook, the Organization points to prior Awards in asserting that the MOA requires specific and detailed written notice at least 15 working days in advance.
The Organization ultimately contends that the instant claim should be sustained in its entirety.
The Carrier initially contends that it gave 30 to 45 days' notice of the schedule change to all Claimants. The Carrier asserts that Manager Crook's statement was specific and provided that Gang 9153 would be moving to a T-1 schedule as allowed by Section 5(d). The Carrier argues that this information was provided to the Organization on the property, and the Organization never disputed it during the on-property handling. The Carrier points out that the Organization never provided any first-hand statements from the Claimants, nor did the General Chairman attempt to deny Crooks' statement. Citing prior Awards, the Carrier emphasizes that this unrefuted information stands as fact.
The Carrier further argues the Organization failed to meet its burden of establishing that the Agreement was violated. It submits that mere citation of a Rule does not prove that a violation occurred. Pointing to several Awards, the Carrier argues that because the Organization failed to meet its burden of proof, the instant claim should be denied. The Carrier further argues that the Board is not empowered to reconcile a dispute where, as here, the Organization did not refute a first-hand statement introduced by the Carrier. Form 1 Award No. 40335
The Carrier ultimately contends that the instant claim should be denied in its entirety.
The Board finds that the Organization proved that the Carrier violated the Agreement when it changed the work schedules on System Cat Gang 9153 from T2 to Tl and failed to comply with the terms of the MOA.
The record reveals that the Carrier did give some vague notice to the employees of the change in the work schedule, but it is not clear that the notice was given at least 15 working days in advance of the proposed change. The Carrier points to a "blanket notice" that was given to the employees, but it is not clear that that blanket notice was issued more than 15 working days in advance of the change. Form 1 Award No. 40335
In the case record, there is an undated memo to S. M. North which is entitled, "A Response to Claim No. M6-MOP063." That statement reads, in part:
That statement by the Carrier representative, that appears to be J. W. Crook, does not clearly state when the notice was given. Moreover, and in further violation of the MOA, there is no showing that there was a written concurrence of the employees involved, nor is there a showing that the General Chairman was given a copy of the written vote of the members of the gang. All of those things are required by the clear language of the MOA.
It is simply not enough for the Carrier to informally inform the employees that there might be a possible change at some point in the future. There is a requirement of a vote, and a further requirement that the results of that vote be turned over to the General Chairman. The Carrier failed to comply with those elements of the Rule.
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.