(1) The Agreement was violated when the Carrier improperly changed the first half July 2008 work schedule of System Gang 9066 and when it failed and refused to properly compensate the employes of said gang for their service on July 8, 2008 (System File R-0840U30111507692).
(2) As a consequence of the violation referred to in Part (1) above, the Claimants (all employees assigned to System Gang 9066) shall now each '***be compensated for the differential in pay from that of straight time and overtime rates, for all hours worked on July 8, 2008 at their applicable rates of pay."
The facts are that Gang 9066 is an "on line" System Tie Gang established under the provisions of Rule 40 of the Agreement. The gang was working a compressed "T-1" alternate work schedule pursuant to the provisions of the aforementioned Agreement. Gang 9066 finished a tie project in California and was in the process of moving to the next project located in Missouri. The last day worked by the gang on the project in California was June 23, 2008. Gang 9066 then observed their accumulated rest days of June 24 through 30, 2008, returning to work on July 1, 2008. The normal "T-1" work schedule for the gang during the first half of July 2008 (which includes a holiday) was July 1 through July 6 (11.5 hours each day) July 7 (11 hour day) and July 8 (8 hour holiday).
It is the position of the Organization that the members of Gang 9066 were informed 20 minutes before the end of the work day on June 23 that they would be required to observe the Independence Day holiday on July 4, instead of July 8, 2008, as scheduled. The Organization attached a statement signed by 20 members of the gang which asserted that no written vote was taken. According to the Organization, most members of the gang had already made prior arrangements for lodging and family activities in advance based upon the posted work days. Consequently, the members of the gang were denied an opportunity to work a scheduled work day on July 4, and instead, they were required to work a scheduled observed holiday on July 8. Because they were not given a proper notice, the Organization contends that the Claimants who worked on July 8, 2008, are entitled to be compensated at the applicable overtime rate for service performed on a holiday. It concluded by requesting that the claim be sustained as presented.
It is the Carrier's position that due to the travel distance between work locations (California to Missouri) the Agreement required that Gang 9066 be afforded what equates to (3 ll2 travel days to be observed on July 1, 2 and 3, with a ll2 day deferred start on July 4, 2008. It asserted that because July 4 was normally the recognized holiday, the members of Gang 9066 approached Manager Neuner regarding whether or not the holiday should be observed on July 4 or on July 8. According to the Carrier, after the discussion was held, the majority determined by voice vote that the first half of July 2008 holiday (scheduled for July 8, 2008) would be observed on July 4, 2008, as allowed by Rule 40(f)(1) of the parties' Agreement. By agreeing to observe the holiday on July 4 in lieu of on July 8, the ll2 day deferred start was moved to July 5, 2008, which afforded the members of Gang 9066 11 1/2 consecutive days off in a row. In Form I Award No. 41057
addition, by rescheduling July 4 as a holiday, July 8, 2008, became a regularly assigned workday. The Carrier argued the change was done in accordance with the Agreement and there is no merit to the Organization's arguments. It closed by asking that the claim remain denied.
The Organization argued that the majority of the gang did not elect by written vote to agree to the change in the work schedule and, absent a written vote to make that change, it was not contractually acceptable. The Organization's argument that a written vote was a necessity was rejected in Third Division Award 39275 involving the same parties to this dispute. Therein the Board held, in pertinent part, as follows:
The Board reaffirms Third Division Award 39275 and likewise concludes that under Rule 40(f)(1) whether the vote was written or oral is not material in the resolution of this matter. Instead, the question at issue is whether a vote was held and did the majority of the gang agree to the change. The Board has been furnished two Form I Award No. 41057
conflicting statements regarding the June 23, 2008 incident and how the schedule change was established.
The Organization furnished a statement from 20 members, which stated the following:
In response to the Organization's statement the Carrier furnished a statement from Manager Neuner, which stated:
The parties offered their respective arguments as to why their statement is superior to the other and should be followed in resolving this case. However, our close examination of the record reveals that the Board has not been offered any compelling logic and/or evidence as to why one recitation of the facts is correct and the other is in error. As we stated in Third Division Award 41051 this dispute comes down to conflicting statements. In a similar dispute involving contradictory statements (Third Division Award 33895) the Board ruled:
