The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
SYSTEM FEDERATION NO. 109, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Car-'men)
EMPLOYES' STATEMENT OF FACTS: Carman James McCauley, hereinafter referred to as the claimant, was regularly employed by the Reading Company, hereinafter referred to as the Carrier, as a Car Packer in Carrier's Reading Yards, Reading, Pennsylvania, with work week Wednesday through Sunday, rest days Monday and Tuesday.
Claimant took his 1965 vacation January 13 through January 17, 1965 both dates inclusive, returning to service Wednesday, January 20, 1965. Claimant's birthday-holiday was Thurs., January 14, a vacation day of his vacation period for which he was paid a day's vacation pay. However, Carrier failed to allow him birthday-holiday compensation for the day, Thursday, January 14.
Claim was filed with proper officer of the Carrier under date of February 20, 1965, contending that claimant was entitled to eight (8) hours birthdayholiday compensation for his birthday, January 14, in addition to vacation pay received for that day, and subsequently handled up to and including the highest officer of Carrier designated to handle such claims, all of whom declined to make satisfactory adjustment.
The Agreement effective January 16, 1940, as subsequently amended is controlling.
The proposal to regard holiday compensation as "guaranteed" and the use of such an unambiguous adjective is reflective of the Brotherhood's desire to achieve a right which it does not currently possess. Carrier believes that the integrity of the Brotherhood prevents it from advancing, for negotiation, rights which it already has attained.
In view of the analysis and reasoning advanced herein, Carrier submits that the claim of the Brotherhood should be denied in its entirety.
Claim as presented to the Board by the Carmen's Brotherhood was not .discussed in conference or handled by correspondence on the property.
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.
Claimant, a car packer with a Wednesday through Saturday work week, took January 13 through 17 as his 1965 vacation. He received his regular pay for each of those vacation days. The gist of the present claim is that, under Article II, Section 6 of the November 21, 1964 Agreement, he is entitled to an additional day's pay for Thursday, January 14, since his birthday fell on a vacation day. Article II, Section 6 reads as follows in pertinent part:
Nowhere in Article II, Section 6 is there a requirement that an extra day's pay be given for a birthday or other holiday that falls within the vacation week on a day that is a work day of the employe's regular work week. The absence of such a provision from the 1964 Agreement is particularly significant, for by the time it had been negotiated, prior awards, interpretations and Emergency Board reports had made it abundantly clear that in the railroad industry employes will not receive additional pay when a holiday occurs during their vacation on what ordinarily would be a work day. See Second Division Awards 2277, 2302, 3477, 3518 and 3557 as well as Awards 9640 and 9641 of the Third Division .
Presidential Emergency Board No. 106 considered the question in 1954 and expressly recommended "that the vacation period not be increased by allowing additional vacation days where holidays fall in the base vacation period and that when a holiday falls on what would have been a work day of the employe's regularly assigned work week, such holiday shall be considered as a work day of the period for which he is entitled to vacation."
In 1960, the question again arose, this time before Presidential Emergency Board 130. That Board had this to say:
In 1964, just prior to the consummation of the present Agreement, Presidential Emergency Boards 161, 162 and 163 considered the question again, reaffirmed the "maintenance of take-home pay" concept and observed that both Emergency Boards 106 and 130 had "concluded that it would he inconsistent with the maintenance of take-home pay theory of paid vacations to provide additional pay on vacation for holidays falling during vacation." Boards 161, 162 and 163 then decided that "there have been no significant developments with respect to holidays during vacations which justify any further recommendations by the Board at this time."
In view of the parties' failure to deal specifically and unambiguously with the subject in the 1964 Agreement in the face of the compelling history of denial awards and Emergency Board opinions referred to above, it is our conclusion that this claim for additional payment for a birthday-holiday that fell on a Thursday, one of Claimant's work days must be denied. In reaching this decision, we carefully distinguish the present case from the situation where a birthday occurs on other than a work day of an assigned work week.
LABOR MEMBERS' DISSENT TO AWARDS
NUMBERS 5230 - 5231 - 5232 - 5233
The findings then go on to support this statement by referring to Presidential Emergency Boards 106, 161, 162 and 163's recommendations. But, if you check these recommendations you will find that none of these Boards had the Birthday pay question before them; therefore, none of these have any merit to be considered in disposing of these disputes. Further, the recommendations of these Boards have no binding power insofar as the agreement as written and agreed to by the parties is concerned. The agreement is controlling in any dispute and not what an Emergency Board recommends.
In regard to a sound basis for treating a birthday that falls on a vacation day differently than the seven holidays that fall on a vacation day is the agreements themselves.
The August 21, 1954 Agreement is the one that permits the pay for the seven holidays under Article II. This same agreement in Article 1, Section 3 provides that if any of these seven holidays fall on a work day of the employes' work week, it would be considered as a work day for vacation purposes. Article 1, Section 3 reads as follows:
If the parties intended to have the birthday considered the same as one of the seven holidays when they fell on a vacation, they would have had to amend this Section to change the word "seven" to "eight" and add the "birthday holiday" to it. They did not do this, therefore, these awards are in error as they amend the rules and the Railway Labor Act does not give the Adjustment Board that power.
The parties to this same agreement knew that there were other holidays provided in some of the agreements at that time and they did not include them in with the seven. Article II, Section 4 reads as follows:
This proves that the parties did not intend that any holiday other than the seven were to be considered in Article I, Section 3. They did not amend Article I, Section 3 of the August 21, 1954 agreement, therefore, the birthday cannot be included without the parties amending it to include same.
If you read the November 21, 1964 agreement, Article II, you will find that the parties provided for one additional day off with pay, or an additional day's pay on each employe's birthday. It also provides that if the birthday falls on one of the seven holidays, the employe can get another day off with pay. There is no such provision for the seven holidays. Therefore, the parties agreed that the birthday is different than the seven holidays.
If the employes are not on vacation when one of the seven holidays occur, they are not permitted to work and, therefore, the holiday is not a work day for them. The same thing applies to the birthday, therefore, it is not a work day as such. Therefore, the claimants come under Article II, Section 6 (a), the part quoted.
The seven holidays prior to the August 21, 1954 agreement, even though they fell on an employe's work day of his work week, were a day off without pay and that was the reason the doctrine of maintenance of take-home pay was applied to them. But the birthday was not included in this doctrine as the November 21, 1964 agreement provides an additional day's pay when the birthday falls on one of the seven holidays of the employe's rest day.
The findings in Award 5230 refer to Emergency Board reports and Second Division Awards Numbers 2277, 2302, 3477, 3510, 3557 and Third Division Awards Numbers 9640 and 9641. These all deal with the seven holidays and all were before the agreement of November 21, 1964. Therefore they do not apply to these disputes.