The Second Division consisted of the regular members and in
addition Referee Howard A.~Johnson when award was rendered.
SYSTEM FEDERATION NO. 156, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
Article II of the November 21, 1964 Agreement merely expanded the above rule to include the employe's birthday as a holiday. Neither the basic agreement, nor the national agreement, gives the employe the right to claim two penalty days when his birthday-holiday and the recognized holiday coincide and the employe is required to work.
The National Agreement of August 21, 1954, provided that employes would be granted seven holidays and would be allowed eight hours at the pro-rata rate of the position to which assigned if any of these holidays fell during their work week. The Agreement of November 21, 1964, (Article II), gave the employes an additional holiday, i.e., their birthday, and this holiday is treated in the same manner as are the other holidays. The claimant was paid one day at the pro-rata rate for her birthday-holiday, one day at the pro-rata rate for the recognized holiday and one day at the punitive rate for working. It is our position that any other interpretation of the basic holiday rule or the National Agreement providing for the birthday-holiday would be absurd.
In the case at hand, there is only one rule in the basic agreement governing the payment for work performed on any legal holiday. It is coincidental that the claimant's birthday and the recognized holiday fell on the same day, but there is no rule in the scheduled agreement nor in the National Agreement of November 21, 1964, which requires the Carrier to pay two days' pay at the punitive rate.
Under existing rules and practices, penalty payment can only be applied once during a single tour of duty. To make the payment requested by the Brotherhood would be in violation of Rule 4, i.e., ". . , there shall be no overtime on overtime . . . ."
It is interesting to note that the General Chairman has not cited any violation of a Rule in the scheduled Agreement but uses the National Agreement of November 21, 1964, as the basis for his claim. The National Agreement only granted the employes an additional holiday-it did not supersede the provisions of Rules 4 and 5 of the scheduled Agreement in existence on the property.
For reasons set forth herein, there is no basis for this claim, and it should, therefore, be denied.
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.
This claim involves a different Carrier and a different Organization from those in Award No. 5237, but provisions of Article II, Section 6 of the National Mediation Agreement of November 21, 1964, identical with provisions of the National Mediation Agreement of February 21, 1964, identical with provisions of the National Mediation Agreement of February 4, 1965, essentially similar rules of the Holiday and current Agreements, and similar facts, Claimant's birthday falling on New Year's day.
Consequently it necessitates the same disposition in accordance with the Third Division and Third Division (Supplemental) Awards cited in the above numbered award of this Division.