Award No. 3018
Docket No. 2734
2-MP-MA-'58
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee D. Emmett Ferguson when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
MISSOURI PACIFIC RAILROAD COMPANY
DISPUTE:
CLAIM OF EMPLOYES:
1. That under the controlling agreement, the Carrier did not
properly compensate Machinists R. Bartlett, J. J. Mather and E. S.
Conkle for Labor Day, September 3, 1956.
2. That accordingly, the Carrier be ordered to additionally compensate Machinists R. Bartlett, J. J. Mather and E. S. Conkle in the
amount of eight (8) hours' pay at the time and one-half rate.
EMPLOYES' STATEMENT OF FACTS:
R. Bartlett, J. J. Mather and
E. S. Conkle, hereinafter referred to as the claimants, are employed by the
Missouri Pacific Railroad Company, hereinafter referred to as the carrier, as
machinists at the Osawatomie shops, Osawatomie, Kansas.
The claimants started their vacations in line with the vacation schedule
worked out at 0sawatomie. Kansas, during the first part of 1956. Their vacation included Labor Day, September 3, which fell on a work day of their work
week and had the claimants not been on vacation they would have worked on
Labor Day, September 3, 1956. The claimants' jobs work all holidays and their
jobs were filled on these particular days by junior employes, however, the carrier declined to pay the claimants their normal take home pay which they
would have received had they not been on vacation. Claimants were paid eight
(8) hours at the straight time rate, but were denied time and one-half as provided for in the agreement.
This dispute has been handled with the carrier up to and including the
highest officer so designated by the carrier, with the result that they have
declined to adjust it.
(89]
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claimant was paid 8 hours at straight time for February 22, 1955, as
one of the vacation days in his work week. The use of regularly
assigned employe on a holiday falling in his work week is casual and
unassigned overtime Award 2212. It is no part of his regular
assignment."
Further as stated in that award, "The difference between assigned and
unassigned or casual overtime is fully explained in Awards 4498, 4510, 5001,
6731, Third Division." See also Third Division Awards 5668, 7033 and 7294, the
latter two involving this carrier and the clerks.
This same question was at issue in Award No. 20 of Special Board of
Adjustment No. 166 on this property to which the clerks' organization was a.
party. In denying the claim, Chairman Whiting made the finding indicated
below:
"STATEMENT OF CLAIM:
Claim of the System Committee
of the Brotherhood that:
1. Carrier violated the Clerks' Agreement when it failed
and refused and continued to refuse to compensate Relief
Chief Bill Clerk, H. H. Lively, Dupo, Illinois, in accordance
with the provisions of Article 7 (a) of the National Vacation
Agreement signed at Chicago, Illinois, December 17, 1941,
at the punitive rate for the holiday, Monday, September 3,
1956, in addition to the pro rata day paid as a day of vacation, when he was on vacation and his position was filled.
2. That the Carrier shall be required to pay Clerk
Lively a punitive day's pay, amount $26.70 for the holiday,
September 3, 1956, account Carrier's failure to properly
apply the Agreement.
FINDINGS:
Award No. 7294 of the Third Division, N.R.A.B.,
involving these same parties, held that 'a holiday is considered an
unassigned day'.
Second Division Awards 2212 and 2302 have held that under the
provisions of Rule 7 (a) of the current Vacation Agreement work on
an unassigned day is casual overtime and that the vacationing employe is not entitled to have it included in his vacation pay.
That, we think, is a proper interpretation of the Vacation Agreement provisions so that the claim here must be denied.
AWARD:
Claim denied."
The awards of the Second and Third Divisions where this question hasarisen have consistently denied the claims. This result is clearly in conformity
with the intent of the agreement of August 21, 1954, as well as the National
Vacation Agreement. Referee Morse has said in interpreting the vacation
agreement
"The parties should never forget the primary purpose of the
vacation agreement was to provide vacations to those employes who
qualified under the vacation plan set up by the agreement. Any
attempt on the part of either the carriers or the labor organizations
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to gain collateral advantages out of the agreement is in violation of
the spirit and intent of the agreement."
The Vacation Agreement requires the payment of the daily compensation
paid by the carrier to an employe having a regular assignment. The daily
compensation paid by the carrier on this assignment is definitely not what is
here being claimed. Daily means each day and the carrier certainly does not
pay two and one-half days' pay each day on these positions. On a holiday the
maximum that could be claimed as daily compensation of the positions is the
pro rata day provided for in Section 1 of Article II of the agreement of
August 21, 1954.
The following are excerpts from Report to the President by the Emergency Board appointed by Executive Order to handle the dispute out of which
was derived the agreement of August 21, 1954. These quotations are from the
portion of the report dealing with the holiday pay proposals of the organizations. The emphasizing is ours.
"The Board feels that in relation to practice in other industries it
would be appropriate for hourly rated nonoperating railroad employes
to receive straight time compensation for any of the seven holidays
falling on any of the work days of their
established work week,
subject to certain limitations outlined. In reaching this conclusion
the Board is strongly influenced by the desirability of making it
possible for the employes to maintain their normal take-home pay
in weeks during which a holiday occurs."
"Some may receive more than the average of five; others may
receive less. The principle of
take-home pay will, however, be maintained, and it is not believed that the variations referred to will need
to be disturbing."
"Summarizing the Board's conclusions concerning Issue 12 under
Holidays, whenever one of the seven enumerated holidays falls on a
work day of the work week of a regularly assigned hourly rated employe, he shall receive the pro rata of his position in order that his
usual take-home pay will be maintained."
We think it is obvious, from the purposes expressed by the Emergency
Board, that there could not be more than the usual take-home pay of an
employe included in the daily compensation paid by the carrier for his assignment. That amount has been paid claimants in this case. This conclusion is
inescapable in the light of the agreed upon interpretation of Article 7 (a) of
the Vacation Agreement excluding casual and unassigned overtime as pointed
out above.
In conclusion, the carrier states that the issues in dispute in this docket
have been resolved in Awards 2212, 2302 and 2339 by your Division. The
carrier does not understand why this claim has been progressed since the
contentions made here have clearly been denied. The carrier has shown that
the claim is not supported by the rules and lacks merits but the task of your
Board is made easy in this dispute in the light of the overwhelming precedent
requiring a denial of this claim.
FINDINGS: The Second Division of the Adjustment Board, upon the
whole record and all the evidence, finds that:
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The carrier or carriers and the employe or employes involved in this
dispute are respectively 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.
The parties to said dispute were given due notice of hearing thereon.
Our Award No. 3017 deciding the issues in Docket No. 2733 governs our
decision herein.
AWARD
The claim is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 25th day of November, 1958.
LABOR MEMBERS DISSENT TO AWARD NOS. 3017 AND 3018
The majority ignores the fact that the claimants, had they not been on
vacation, would have worked the instant Holidays for the reason that said
Holidays occurred within their regular weekly assignments and under the
Note to Rule 5 "Men will be assigned from the men on each shift who would
have the day on which the holidays falls as a day of their assignment if the
holiday had not occurred . . ."
The agreed to Interpretation of Article 7 (a) of the National Vacation
Agreement provides in part as follows:
"This contemplates that an employe having a regular assignment
will not be any better or worse off, while on vacation as to the daily
compensation than if he remained at work on such assignment, * * *."'
Therefore the claimants should have received the amount of compensation for the Holiday they would have received had they been working
their regular assignment.
/s/ James B. Zink
/s/ R. W. Blake
/s/ Charles E. Goodlin
/s/ T. E. Losey
/s/ Edward W. Wiesner