This dispute involves Carrier's scheduling of the Presidents' Day holiday during the second half of February, 2005 for each of these named gangs. Rule 40(f)(1) requires that a holiday be observed at the end of the compressed work period "unless agreed otherwise by a majority of gang members and the appropriate Manager," and that the amount of service hours during the half be reduced by the 8 hours attributable to the holiday. Rule 40(f)(5) requires that employees required to work on the day observed as a holiday will receive compensation at the overtime rate.
In this case, Claimants observed their rest days at the beginning of the compressed half, worked during the end of the half, and were regularly scheduled for nine hour workdays. The Presidents' Day holiday fell on Monday, February 21, 2005, which was normally the first day of their compressed work period. During the last half of February, 2005 Carrier scheduled Claimants to work from February 22 through February 28, 2005, and Claimants observed the holiday on February 21 rather than on the last day of their work cycle. The second compressed half of February, 2005 had 72 hours scheduled, 8 of which were attributable to
the holiday. Employees worked nine hours on each of February 24-28 and nine and one-half hours on February 22 and 23, totaling the 64 work hours in the half, and were paid 8 hours holiday pay for February 21, 2005. The issue in this case is whether there was agreement to observe the holiday at the beginning, rather than the end, of the compressed work period.
The Organization contends that the holiday should have been scheduled for February 28, 2005, the end of the compressed work period under Rule 40(f)(1), and the remaining 64 hours spread over the prior seven day compressed half commencing on February 21, 2005. By Carrier scheduling the holiday for February 21, and requiring employees to work on February 28, which they should have observed as their holiday, the Organization believes that employees should be compensated for the 9 hours of work opportunity missed on February 21 as well as payment at the overtime rate for work performed on February 28, 2005. The Organization questions the self-serving nature of the managers' statements that votes were taken, asserting that its investigation disputes this fact. It argues that Carrier's failure to produce copies of the actual votes, after requested to do so, requires an adverse inference and a finding that such contention is not supported in the record, relying on Third Division Awards 15444, 19447, 20892.
Carrier argues that it did not fail to comply with Rule 40(f)(1) since the record contains statements from Managers of Track Programs Haverstick and Heuner that a vote was taken and a majority of the members of the gangs voted to take the holiday on the first day back and work the last day of the half. It contends that the Organization's failure to submit first hand evidence refuting this fact is fatal to its claim, and, at
best, its questioning the accuracy of such evidence creates an irreconcilable dispute in fact supporting the dismissal of the claim, citing Third Division Awards 33487, 33895; Public Law Board No. 2960, Award 154.
A careful review of the record and arguments of the parties convinces the Board that the Organization has failed to meet its burden of proving that Carrier violated Rule 40(f)(1) when it scheduled the Presidents' Day holiday on the first rather than the last work day of the compressed half in this case. While the Organization asserted that no agreement of a majority of gang members was obtained to change the date the holiday was celebrated as required by Rule 40(f)(1), it did not present any statements from Claimants to that effect after Carrier had included with its denial two written statements of the managers so contending. Unlike the language in Rule 40(a) requiring the election to work a compressed to be in writing, there is nothing contained in Rule 40(f)(1) requiring that the agreement to change when the holiday is scheduled must be in writing. Thus, Carrier's failure to produce any written votes does not call for an adverse inference or defeat its position that a verbal vote was taken to support the change. At best, the record contains an irreconcilable dispute of fact with reference to whether there was an agreement under Rule 40(f) (1) which the Board is not empowered to resolve, and which requires that the claim be denied. Third Division Award 33487.
Margo K. Newman