The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
SYSTEM FEDERATION NO. 29, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: Carman E. E. Woodney, hereinafter referred to as the Claimant, was regularly employed by the Gulf, Mobile and Ohio Railroad Co., hereinafter referred to as Carrier, as Carman at Tamms, Illinois, with work week Tuesday through Saturday, rest days, Sun day and Monday.
Claimant took 1965 vacation April 6 through May 1, 1965, both dates inclusive, returning to service Tuesday, May 4, 1965. Claimant's birthday was Thursday, April 22nd a vacation day of his vacation period for which he was paid a day's vacation. However, Carrier failed to allow him birthday holiday compensation for the day, Thursday, April 22nd.
Claim was filed with proper officer of the Carrier under date of June 3, 1965, contending that claimant was entitled to eight (8) hours' Birthday Holiday compensation for his birthday, April 22nd, 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, 1941, as subsequently amended, particularly by the November 21, 1964 agreement, is controlling.
POSITION OF EMPLOYES: It is respectfully submitted that the Carrier erred when it failed and refused to allow claimant eight (8) hours' birthday
The foregoing facts are fully known and have been fully reviewed with Petitioner's representative. It is, therefore, evident that reliance is being placed on that portion of Section 6(a), Article II-Holidays of the Agreement of November 21, 1964, reading:
As stated, the quoted portion of the latter rule is not applicable in the instant case since, (a) the birthday involved did not fall on other than a work day of the claimant's work week, and (b) the claimant would not have been entitled to any other pay for that day under any other agreement, practice or understanding in effect on this property.
In conclusion, the Carrier asserts the instant claim is entirely lacking in agreement or other support and requests that it be denied.
All data herein have been presented to the duly authorized representative of the employes and are made a part of this particular question in dispute.
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.
In 1965, Claimant's birthday, April 22, fell on one of his vacation days as well as on a work day of his assigned work week. He received vacation pay for April 22 but Carrier did not allow him additional compensation for the birthday holiday. It is Petitioner's position that he is entitled to such additional compensation under Article II, Section 6 of the November 21, 1964 Agreement. In Award 5230 we considered the same issue, contentions and agreements and denied a claim substantially similar to the one now before us. We see no justification for reaching a different result in this case and will deny the claim.
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 I, 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 I, 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, 3518, 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.