A work week consisting of five (5) days of eight (8) hours each with two (2) consecutive days off in each seven is not inflexible and absolute. That work week established by the terms of Rule 8, Section 1, paragraph (a) of the Schedule for Freight Handlers is subject to all of the provisions of Rule 8 which follow and which includes the provisions permitting changing of rest days on giving proper notice (Rule 8, Section 2, paragraph (c)) and the definition of a work week (Rule 8, Section 1, paragraph (i) ).

Rule 8 contains no unqualified provision requiring payment of time and one-half to an employe required to work in excess of five 5) consecutive days, neither does it contain any provision requiring that an employe who works in excess of five (5) consecutive days as a result of changing his assigned days off will be entitled to time and one-half for any consecutive days worked in excess of five.

That the foregoing is true is readily apparent when one gives consideration to the fact that NO RULE IN THE SCHEDULE FOR FREIGHT HANDLERS PROVIDES THAT THE CARRIER PAY ANYTHING BUT STRAIGHT TIME FOR WORK PERFORMED DURING ASSIGNED HOURS ON A WORK DAY OF A WORK WEEK OF AN ASSIGNMENT WHEN SUCH WORK IS PERFORMED BY AN INDIVIDUAL REGULARLY ASSIGNED TO THE JOB.

The Chairman of the General Committee in his letter to the Manager Personnel dated January 24, 1963, states as follows:

"We do not dispute the Company's right under the existing agreement to change the rest days of a position"

however, in conference had between the parties he contended that it is mandatory that the change be made effective on the first work day of the changed work week.

The Schedule for Freight Handlers does not contain any provision which requires that a change in rest days be made effective on any particular calendar day or any particular day of the work week of the individual as it may exist at the time the thirty-six (36) hours' notice is given.

While the change of rest days would affect the beginning of the work week of employes under Rule 8, Section 1, paragraph (i) of the Schedule for Freight Handlers, there is no prohibition in that and other rules of that schedule against assigning an employe to commence work on some other than the first day of the work week of an assignment and in that regard THE CARRIER CALLS ATTENTION TO THE FACT THAT THERE ARE NO RULES IN THE SCHEDULE FOR FREIGHT HANDLERS WHICH PROVIDE A GUARANTEE OF ANY NUMBER OF HOURS OR DAYS OF WORK PER WEEK- NO RULE PROHIBITS REDUCING WORK DAYS BELOW FIVE (5) IN A SEVEN (7) DAY PERIOD.

Certainly no guarantee is contained in Rule 8, Section 1, paragraphs (a) and (i) of the Schedule for Freight Handlers, the source of which is the agreement signed at Chicago on March 19, 1949-the National Forty-Hour Week Agreement, as Article II, Section 3 (f) of that agreement explicitly states:

"Nothing in this agreement shall be construed to create a guarantee of any number of hours or days of work where none now exists."

Further, Rule 8, Section 2 (e) of the Schedule for Freight Handlers reads as follows:

"(e)-Guarantees

The adoption of the shorter work week rule in Rule 8, Section 1, of this schedule (Article II, Section 1, of the March 19, 1949 Agreement), did not create a guarantee of any number of hours or days of work."

The absence of such guarantee is significant in view of the following:

It has been held in some awards of this Division that a change in rest days could not be made effective until the first day of the new work week but those awards were predicated on a guarantee rule therein involved providing that nothing in the agreement shall be construed to permit the reduction of days below five in a week and while those awards originally had application where the change in rest days resulted in an employe working less than five (5) consecutive days between rest days, it was also mistakenly applied in cases where employes worked more than five (5) consecutive days which prompted claims similar to the claim here involved.

Awards Nos. 7319 and 7320 are clearly illustrative thereof.

In Award No. 7319 it was held that a change in rest days could not be made effective until the first day of the new work week; however, that award was predicated on a guarantee rule therein involved providing that nothing in the agreement shall be construed to permit the reduction of days below five in a week.

Such is evidenced by the following excerpts from that award:

"From this it is argued by the Organization that the guarantee rule applies which in substance states that nothing within this agreement shall be construed to permit the reduction of days for regularly assigned employes below five per week, to which there are exceptions not material here. Consequently, we find that the same assignment exists throughout with rest days properly changed and a guarantee that nothing in the Agreement, which necessarily includes a change in rest days, shall be construed to permit the reduction of days below five a week. It is plain also that if the work week is changed in such a way that there is no violation of the guarantee rule, then the rest day rule may become applicable.

*

It seems to us that our previous awards do not adequately decide the issue here raised. The effect of the overtime and guarantee rules as they bear upon the situation do not appear to have been adequately considered. We think it is necessary to give effect to all the rules bearing on the problem and to state the controlling principle with that objective in mind. We shall attempt to do so." (Emphasis ours.)

With that guarantee rule in mind, this Board then held in Award No. 7319 that:

"The effective date for the change in rest days was February 15, 1954. On that day, the change was made in accordance with Rule 20-3 (e) 3. No further change in rest days could be made except in the manner provided by Rule 20-3 (e) 3. But the change in work weeks could not take place until the new work week began, which was on Saturday, February 20, 1954. It seems logical to say that as the new work week began on February 20, 1954, the old work week assignment necessarily continues up to that date. If this were not so, we would have one of two contingencies, an overlapping of work of the new work week resulting from the change in rest days. We are convinced that every day in a regular assignment is in a work week and consequently there can be no void between work weeks." (Emphasis ours.)

It is clear, therefore, that this Board in its Award No. 7319 was concerned with the change in rest days creating a shortened work week until the first day of the new work week occurred and as there was a guarantee rule in the agreement there involved, which provided that nothing in the agreement shall be construed to permit the reduction of days below five in a week, it held that regardless of when the Carrier's notice of change in rest days became effective, it would not be effected until the occurrence of the first day of the new work week.

That the presence of a guarantee rule was the factor which motivated this Division to state in Award No. 7319 that "there can be no void between work weeks" and to thus find that regardless of when the Carrier's notice of change of rest days became effective that it would not be effected until the first day of a new work week, is fully evidenced by the following statement in this Division's Award No. 7324:

"Under the guarantee rule, a regular employe cannot properly be left with a void of two days in any work week. And in refusing to avail itself of the service which Claimant DeSpretter was ready to perform on December 17, and 18, 1952, the Carrier must pay for the two lost days at the pro rata rate." (Emphasis ours.)

Award No. 7320 involved a claim for "the difference in straight time rate and punitive rate for March 30th and 31st, 1954, which were his sixth and seventh days worked."

This Division in Award No. 7320 (with same Referee as in Award No. 7319) held as follows:

"The decision is controlled by Award No. 7319."

thus holding that the change in rest days became effective on the first day of the new work week as it had held in Award No. 7319.

As there is no guarantee rule involved in this docket, it is clear in the absence of such rule that if it was the intent of the parties to the Schedule for Freight Handlers here involved that a penalty was to be incurred when rest days were changed as provided in Rule 8, Section 2, paragraph (c) of that schedule, that the penalty would be definitely set out in the rule.

An examination of the conflicting awards of this Division in cases involving change in rest days reveals that nearly all of those awards are distinguished by one highly significant fact-that is, a guarantee rule, a rule which is not contained in the Schedule for Freight Handlers here involved.

Irrespective of the fact that there is no guarantee rule in the Schedule for Freight Handlers, it is inconceivable that any guarantee rule would guarantee earnings on assigned rest days.

The General Chairman in his letter to the Manager Personnel dated January 24, 1963, quotes part of Rule 8, Section 1, paragraph (i) of the Schedule for Freight Handlers, reading as follows:

"(i)-Beginning of Work Week

The term 'work week' for regularly assigned employes shall mean a week beginning on the first day on which the assignment is bulletined to work,

without commenting thereon.

*

An examination of the language in that rule provides no interpretation that the definition there set forth as to the term "work week" means that an employe may not enter upon the work week on any one of the seven days comprising it or that he is limited to beginning work on it on the day which is designated as the beginning of the work week.

The work week of an assignment exists independently of the individual occupying it and in the absence of a provision placing a restriction thereon, an employe covered by the Schedule for Freight Handlers may properly be required to commence work on a changed work week, due to change in rest days, on other than the first day of that work week.

The Carrier submits that the Committee's Statement of Claim is without support under the Schedule for Freight Handlers. While the Committee has contended the Schedule for Freight Handlers was violated, it has not assumed the burden of proving such violation. The Carrier on the contrary has shown that it complied with the Schedule for Freight Handlers in changing the rest days of the claimants and that the Schedule for Freight Handlers does not impose a penalty when making a change in their rest days.

The presentation of this case to this Division represents an attempt on the part of the Committee to have this Board place restrictions upon the Carrier covering the change in rest days of freight handlers which do not now exist. In fact, this Board is asked to nullify rights which are specifically retained by the Carrier in Rule 8, Section 2 (c) of the Schedule for Freight Handlers.

Furthermore, the presentation of this case to this Division is in entire disregard of the fact that Rule 8 of the Schedule for Freight Handlers was in effect in its present form for approximately thirteen (13) years prior to the claim dates and that the rest days of freight handlers have been changed on numerous occasions during that period of time without it having previously been contended that irrespective of the fact that proper notice of change in rest days had been given, the employes affected continue to be entitled to the old rest days after the effective date of the notice of change in those rest days.

Rule 8, Section 2 (c)-Change in Rest Days, cannot be treated as mere surplusage.

The claim should be denied.

(Exhibits not reproduced).

OPINION OF BOARD: Carrier exercised a contractual right to change the work week of Claimants. In effectuating the change Claimants worked seven consecutive days. The issue is whether Claimants should have been paid the overtime rate of pay for the sixth and seventh of the consecutive days.

The issue has been decided by numerous Awards of this Board. See, for example, Award No. 12911 wherein we stated:

"... this Board has repeatedly held that an employe cannot be required to work more than five consecutive days or forty hours without overtime compensation. See, for example, Awards 9962 and 11549."

We will sustain the claim.

FINDINGS: The Third Division of the Adjustment Board, upon the wholerecord and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Carrier violated the Agreement.

Claim sustained.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

Dated at Chicago, Illinois, this 30th day of June 1965.