The Second Division consisted of the regular members and in addi
tion Referee Adolph E. Wenke when the award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Firemen and Oilers)
EMPLOYES' STATEMENT OF FACTS: Rosie Lee Glover, hereinafter referred to as the claimant, entered the service of the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, on November 19, 1944, as a laborer at Gurdon, Arkansas. The claimant was furloughed on May 15, 1953.
On November 8, 1954, the claimant was directed by the carrier to fill the vacancy in the regular assigned laborer's position, the scheduled hours of which were 8:00 A. M. to 12:00 Noon and 1:00 P. M. to 5:00 P. M., work week Monday through Friday with rest days of Saturday and Sunday. The vacancy was due to the absence of Laborer Dave Berry who was off because of illness.
The claimant worked her regular assigned shift on November 24 and 26, 1954, the work days immediately preceding and following the holiday.
Thursday, Thanksgiving Day, November 25, 1954, fell on a work day of the assigned work week of the claimant. The carrier did not require the claimant to work on the holiday and the carrier further denied the claimant holiday pay for the holiday.
This dispute has been handled with the carrier up to and including the highest officer so designated by the company, with the result that he has declined to adjust it.
position with a work week within which a holiday falls, there are still other conditions provided in Section 3 of Article 11 which must be met before becoming entitled to holidav allowance for not working.
Perhaps the carrier should remind your Board that the employes have the burden of proving that Claimant Glover was a regularly assigned employe on November 25, 1954 and that she also met the other conditions precedent to establishing a right to holiday allowance for not working. See Second Division Award No. 1996 and Third Division Award Nos. 6402, 6650 and 6673 and numerous others.
Without relieving the employes of the burden of proof, the carrier again states that Claimant Glover was not a regularly assigned employe at any time during the period November 15, 1954 to and including Thanksgiving Day, November 25, 1954, said date being the holiday involved. During said period, she was filling a temporary vacancy account of the absence of a regularly assigned employe because of illness, and had no right to any position; therefore could not have been regularly assigned prior to November 25, 1954. Upon the return of Laborer Dave Berry from absence because of illness, he resumed on his own regular position as laborer on the repair track at Gurdon, and Claimant Glover was no longer used on said position.
For your Board's interpretation of Article 11, Section 1 of the agreement of August 21, 1954, please be referred to Award No. 2052 of the Second Division, made with the assistance of Referee David R. Douglass, denying a similar claim for holiday allowance for not working, which held as follows:
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectfully carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Rosie Lee Glover contends he is entitled to holiday pay for Thursday, Thanksgiving Day, November 25, 1954, under Article II, Section 1, of the August 21, 1954 National Agreement and that carrier refuses to pay him therefor. Consequently he asks that we require carrier to do so, that is, for 8 hours of pay at the applicable straight time rate.
of a force reduction. Laborer Dave Berry, with a seniority date of March 9, 1943, was regularly assigned to a job of repair track laborer on the repair tracks at Gurdon but, because of sickness, laid off commencing Friday, November 12, 1954. Carrier then used claimant to fill this vacancy. This was permissible and proper under the provisions of the parties' memorandum of agreement dated June 20, 1949. Claimant worked the position from Monday, November 15, 1954, until Monday, January 31, 1955, when Berry returned to work and took over his job. The work days of this job were Monday through Friday, with Saturday and Sunday as rest days. The daily tour of duty (shift) was from 8:00 A. M. to 12:00 noon and from 1:00 P. M. to 5 :0 0 P. M.
Claimant worked the regular hours of the shift on Wednesday, November 24, and on Friday, November 26, thus qualifying for holiday pay on Thursday (Thanksgiving Day), November 25, 1954, under Section 3 of Article II of the agreement of August 21, 1954, if he was eligible therefor under Section 1 of said Article II.
Rules of the parties' agreement do not require that the positions of "Repair Track Laborers" be bulletined. See Rules 14 and 11 (b) (C). Consequently Berry did not bid in nor was he assigned to his job by bulletin. But employes can be regularly assigned to and occupy a position or job without it being bulletined. Such is the situation here, for Berry was regularly assigned to and occupied the job on which claimant temporarily worked while Berry was off sick.
We have held that Section 1 of Article II of the agreement of August 21, 1954, applies to an employe who is regularly assigned to and on a regular position or job and not to the position or job as such. See Award 2169 of this Division. Consequently an employe who is only temporarily filling such regular position would not be eligible to receive the benefit thereof. That is claimant's situation.
The majority in the instant findings refer to Award 2169. We dissented from that Award and are constrained for the same reasons to dissent from the instant findings and award.
The majority should have found here, as was found in Award No. 2173, that "the claimant was a regularly assigned employe within the intent and meaning of Section I of Article 11 of the Agreement of August 21, 1954 and therefore eligible to receive the benefits thereof."