Upon the whole record, after hearing, this Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
This claim involves the application of Rule 40, Alternative Work Periods, to the members of twenty-two system gangs who were working consecutive half workweek arrangements during the second half of August 2001. What is in dispute is Carrier's assignment of work on nine rather than eight work days. The applicable portions of Rule 40 appear below.
This dispute involves the issue of whether Claimants, members of the various system gangs noted in the claim, were assigned to an eight (8) day compressed half as alleged by the Organization, or a ten (10) hour workday compressed half under Rule 40(a) as asserted by Carrier. The importance of this distinction, for purposes of this claim where the compressed half involved included 96 work hours, concerns whether Carrier had the right to schedule Claimants to work nine 10 hour days with the remaining 6 hours distributed over those nine days or was required to schedule Claimants to eight 12 hour days. The time period in issue is the second half of August, 2001. The claim seeks overtime pay for the ninth work day in the half and compensation for the additional straight time hours they should have worked on each of the eight days.
A careful review of the record and arguments of the parties, as well as prior Board precedent, convinces us that the Organization's claim for
additional compensation for the second half of August, 2001 must be denied. This case is substantially identical to Case No. 17 recently decided by this Board, which dealt with the propriety of Carrier scheduling work on nine consecutive workdays in the second half of July, 2001 to marry of the same gang members. Since the arguments of the parties and the underlying records are the same, they will not be repeated herein and their recitation in Public Law Board No. 6867, Award 18 is incorporated in this decision. We confirm our findings with respect to the effect of the comments contained in some of the bulletins, as well as the absence of the specific election forms for the gangs in issue in this case. As was the case in Award 18, there is nothing in this case showing that Carrier did not schedule these gangs during the second half of August, 2001 in compliance with its assertion that they were regularly scheduled for 10 hour days, with the remaining hours distributed throughout the work period. This fact differentiates this case from the one decided by the Board in Award 17 and negates the alleged violation of Rule 40(c). Additionally, we find no evidence in this record to support a Rule 40(1) violation as there is nothing establishing that there was a schedule change requiring written notice, or that gang members were not timely informed of their work schedules.
This Board reaffirms its holding in Award Nos. 3, 17 and 18, that the plain language of Rule 40(a) does not contemplate a compressed half of any fixed number of days, but speaks of the assignment of consecutive workdays on the basis of a regularly scheduled number of hours between 8 and 12. Thus, we find that the Organization has not met its burden of proving that Carrier's assignment of Claimants to work a ninth day in the second half of August, 2001 was in violation of Rule 40(a).
