(5) If required to perform service during the hours at the end of the compressed work period observed as the holiday, employees will be compensated at the overtime rate.

(I) Employees working a compressed work period under paragraph

(a) will have their workdays and rest days set forth in writing a

(p) The provisions of the rule apply to a gang as a whole and not individual employees and is designed to improve productivity, and the composition of employee's rest hours to afford employees a greater opportunity for extended visits to their homes. No claims will be filed on behalf of any employees subject to this rule. Except as provided herein, existing practices, understandings, or any other Agreements regarding the assignment of work periods are not modified."

The Organization argues that the Carrier erred when it required the employees assigned to System Gangs 9003, 9013 and 9023 to forego a total of ten hours work on November 16 through 21 and then assigned them to work at straight time on November 22 - which should have been observed as a holiday. The Organization continues that the alternative work schedules of compressed halves are subject to Rule 40 and only permissible when agreed to by a majority of the employees on a project and the approval of the Carrier Manager. The compressed halves on this project were for an eight day compressed half with 96 hours distributed over those eight days. The two holidays at issue should have been observed after six days were worked for a total of 72 hours to be worked in the half. The extra work time should have been distributed evenly over the six days. The gangs should not have worked the seventh day on November 22. Because they did work seven days, that seventh day should be paid at the overtime rate.

The Carrier counters that the Organization is attempting to rewrite the Agreement because there is no language in the Agreement that requires a compressed half to be eight days in duration. The Carrier reminds the Board that it is a management right to assign work so long as it does not violate the Agreement. Here, the Carrier did not violate the Agreement by observing the two holidays after seven days of work. The 72 remaining hours, after the 16 hours of holiday were

deducted, were worked over the seven days. Rule 40 addresses the number of hours worked in a compressed half; it does not discuss the number of days worked. The Carrier cites the decision of Referee Newman in Award 3 of Public Law Board No. 6867 and contends that the principle of stare decisis requires the instant claim to be denied.

Award 3 of Public Law Board No. 6867, cited by the Carrier, involved the application of Rule 40's Alternative Work Periods to a system gang working a compressed half in the second half of May 2002. At issue was the observance of the Memorial Day holiday. The Organization asserted that the holiday should have been observed on the eighth day with the eight hours for the holiday distributed over the prior seven days. The Organization also asserted that the Carrier violated Rule 40(l) by not issuing prior notice of the schedule change. The Carrier responded that Rule 40 addresses the number of hours worked per day as elected by the employees, but not the number of days.

"A careful review of the record and arguments of the parties convinces the Board that the Organization's claim for additional compensation for the second half of May, 2002 must be denied. The Organization's position is dependent upon a showing that what was elected by System Gang 9049 and concurred in by the Manager under Rule 40(a) was a compressed half consisting of 8 workdays. It has failed to show that Rule 40(a) contemplates a compressed half of any fixed number of days. Rather, the evidence substantiates that System Gang 9049 was working a compressed half consisting of 10 hour workdays, was bulletined as such, and that Carrier did not give up its right to schedule more than 8 workdays during a compressed half of 88 or 96 hours. In the instant case, Carrier scheduled the 96 hour second compressed half in May, 2002 to be worked over nine workdays, with the ninth being designated as the holiday and the other eight comprised of 11 hour days.

The Organization has not met its burden of proving that this action violated any of the provisions of Rule 40, including Rule 40(l) with respect to the required written advance notice of change of schedule.

The Board carefully reviewed the evidence and arguments in the instant matter. The Board finds the decision of Referee Newman to be controlling. Award 3 of Public Law Board No. 6867 placed the burden upon the Organization to prove that the election pursuant to Rule 40 was for a fixed number of days. The Organization was unable to prove such an election and agreement with the Carrier Manager as required by the Rule. Instead, the evidence showed that the election was for a compressed half of ten hour days.

Here, the Carrier scheduled a nine day compressed half and observed the two holidays on the last two days of the compressed half. The remaining hours were distributed over the compressed half. Based upon the above, the claim must be denied.

AWARD