SYSTEM FEDERATION NO. 78, RAILWAY EMPLOYES'

DEPARTMENT, AFL-CIO (Federated Trades)

ERIE-LACKAWANNA RAILROAD COMPANY

DISPUTE: CLAIM OF EMPLOYES:

1. That under the Current Agreement, particularly Article III of the August 19, 1960 agreement the Carrier improperly denied the Shop Craft employes listed in Exhibit A, attached hereto, holiday pay for Christmas Day, December 26, 1960 and New Years Day, January 2, 1961.

2. That accordingly, the Carrier be ordered to compensate each employe listed in Exhibit A attached hereto, 8 hours per day at the applicable pro rata rate for two days, Christmas Day, December 26, 1960 and New Years Day, January 2, 1961.

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 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.

Parties to said dispute waived right of appearance at hearing thereon.

Carrier raises in this claim the jurisdictional question in regard to Article V (a) of the August 21, 1954 Agreement, and alleges that the claim involving 44 of the 73 claimants herein was not handled in accordance with said Article V (a) and, therefore, Carrier argues that the claim of 44 of the 73 claimants must be dismissed.

Article V 1(b), the pertinent provisions thereof, reads as follows:

"If a disallowed claim or grievance is to be appealed, such appeal must be in writing and must be taken within 60 days from receipt of

notice of disallowance, and the representative of the Carrier shall be notified in writing within that time of the rejection of his decision. Failing to comply with this provision, the matter shall be considered closed . . . ."

"This claim has net been handled in accordance with the provisions of agreement rules as you allege. Under the provisions of paragraph (b) of Article V of the August 21, 1954 Agreement, it dictates that `If a disallowed claim or grievance is to be appealed, such appeal must be in writing and must be taken within 60 days from receipt of notice of disallowance, and the representative of the Carrier shall be notified in writing within that time of the rejection of his decision. Failing to comply with this provision, the matter shall be considered closed * * *.' Accordingly, the claim for the following listed employes should be considered closed for the reason that Local Chairman Frank Owcarz failed to advise Division Car Foreman Reed Haag that the denial decision contained in the Division Car Foreman's letter of February 18, 1961 was not acceptable and that the matter was to be appealed.

Lombardi, Joseph Fitzgerald, Francis

Peters, Walter Davies, Vernon

Gasper, Victor Kerekes, William

Patelunas, Martin Golonke, Nicholas

Viselli, Emilio Pronitis, Peter

Giavannoni, Vincent Macko, Michael

Savage, Joseph Jacoby, Jacob

Tarantini, Frank Owcarz, Frank

Minkel, William Szabad, Julius

Compton, Theodore Kosty, George

Perrick, Andrew Marinchak, George, Sr.

Moschorak, Michael Cottinilli, Joseph

Gaydula, Michael Hvasta, Carl

Ayers, Elmer Coolick, Michael

Szabad, Louis Horvath, Frank

Baker, Stanley Sinclair, John

Wozney, John Worrell, Herbert

Chamberlain, Roy Tugend, Carl

Riedmiller, George Charlesworth, Russell

Beaver, Cloyd McGinley, Sylvester

Schimelfenig, Edward Stancavich, Clement

Miller, Peter Peffer, Stanley"

in accord with said mandatory requirements, of Article V (b) of '54 Agreement, the claim of these said 44 claimants must therefore be dismissed.

Carrier objects to the claim of A. Matalus and P. Needham for the reason that claim for these two claimants are being made for the first time before this Board, and therefore Article V of August 21, 1954 Agreement is violated. The Organization, in its rebuttal to Carrier's submission, agrees that these two employes were not shown on the initial claim and the Organization concludes that the claim for these two employes is withdrawn. Therefore, the claim of A. Matalus and P. Needham is dismissed.

In regard to the merits of the claim of the remaining claimants for Christmas and New Year's holiday pay, Carrier alleges that said claimants cannot be considered as "available for service" within the intent and meaning of Section 3 (ii) and the "Note" therein of Article III of the '60 Agreement for failure to comply with Article IV of the '54 Agreement. This objection was found by this Division in Award 5061, to be without merit and therefore must be rejected.

Also, Carrier contends that by virtue of Rules 16, 17 and 18 of the agreement with International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers, and Rules 22, 23, 24, and 25 of the Agreement with System Federation No. 78, said rules prevented claimants from being considered "available for service" on the workday immediately preceding and following each holiday. This Board has previously rejected the test to determine "available for service" as requiring an employe to respond to a call for service, and we have pointed out that the test in so determining "available for service" within the intent and meaning of Section 3 (ii) and the "Note" therein of Article III of the '60 Agreement is whether or not Carrier called an employe, such as claimants herein for service, and whether said employe did or did not respond to such call for service from Carrier. There is no contention in this dispute that Carrier called Claimants for service and thus these other claimants herein were "available for service" within the intent and meaning of said Section 3, Article III of the '60 Agreement.

It is therefore the opinion of this Division that the claim of claimants herein (other than the 44 claimants listed above, whose claim was dismissed for failure to comply with Article V (b) of '54 Agreement), must be sustained.

AWARD

(a) Claim of 44 claimants specifically named in the Award dismissed for failure to comply with Article V (b) of August 21, 1954.

(b) Claim of A. Matalus and P. Needham dismissed.

(c) Claim of all other claimants herein sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of SECOND DIVISION