NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
(1) That under the applicable Agreements, the Carrier improperly denied Carman H. C. Marshall six (6) hours' pay at the time
and one half rate for February 13, 1965, the claimant's birthday.
(2) That, accordingly, the Carrier be ordered to compensate the
aforesaid Carman for six (6) hours' pay for February 13, 1965.
EMPLOYES' STATEMENT OF FACTS: H. C. Marshall, hereinafter
referred to as the claimant, holds seniority as a Carman and is employed as
such by the Chicago, Rock Island and Pacific Railroad Company, hereinafter
referred to as the Carrier, at Fort Worth, Texas.
The claimant is employed on the Repair Track with assigned hours of
8:00 A. M. to 4:30 P. M. with rest days of Saturday and Sunday. The claimant,
while off duty on Saturday, one of his assigned rest days and also his birthday,
was called in to work and did work as a write up man on the Repair Track
from 10:00 A. M. until 4:00 P. M.
The Claimant was paid eight (8) hours' pay at the pro-rata rate for
February 13, 1965 account of qualifying for birthday pay and in addition was
paid six (6) hours' pay at the time and one half rate account of performing
service on his assigned rest days.
The claimant was denied any overtime payment for service performed on
his .birthday.
This dispute has been handled with the Carrier up to and including the
highest officer so designated by the Carrier, with the result that he has
declined to adjust it.
This same reasoning was followed in the Findings of Award No. 3 of
Special Board of Adjustment No. 603 which involved a similar dispute between
the Great Northern Railway and the Transportation-Communication Employes
Union rendered on January 13, 1966 with Francis J. Robertson as Chairman
of the Special Board. The findings held in part:
"The rate of time and one-half for work performed because of
working through a period which should be allocated to a vacation,
working on a holiday, working on a rest day or working in excess of
eight hours in a day is a premium rate; the purpose of which is to discourage the Carrier from requiring employes to work at such times.
By the mere incidence of a holiday and a day which is treated as a
vacation day for bookkeeping purposes coming together, the premium
cannot be converted to triple time. And, it must be considered as triple
time under the employes' theory since there is no more than eight
hours worked and for that time worked they are seeking twentyfour hours' pay. This is more than just pyramiding premiums; for the
premium is
1/2
time, but under the employes' theory there would be
added a premium of one and one-half times the basic rate to arrive at
twenty-four hours' pay for the eight hours worked on the holiday
which also happened to be a `vacation' day. Assuming the correctness
of the employes' theory, it would logically follow that if the claimants
here had been required to work in excess of eight hours on the dates
of claim, they would then be entitled to pay at
41/2
times the basic
rate for the overtime hours. It is doubtful that any such absurd result
was intended by the premium pay rules.
We think it is clear that in the absence of rules showing a clear
intent to the contrary (and we are not acquainted with any nor cited
to any) that the premiums required for working on a vacation day
which also happens to be a holiday were designed to operate on a
concurrent non-cumulative or non-consecutive basis and that they
were not intended to be pyramided. Consequently the proper payment
for the time actually worked by the claimants on December 26, 1960
was one and one-half time."
A copy of Award No. 3 of Special Board of Adjustment No. 603 is attached
as Carrier's Exhibit C.
Clearly and unquestionably, this claim is without support and should be
denied.
It is hereby affirmed that all of the foregoing has been a matter of
correspondence or conference between the parties or available thereto. Oral
hearing is not requested unless requested by the Employes in which event
Carrier would be represented.
(Exhibits not reproduced.)
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.
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This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant worked six hours on February 13, 1965, which was not only his
birthday-holiday but also his rest day. For that service he was paid eight
hours at the straight-time rate for the birthday-holiday and six hours at
time and one-half. He now seeks an additional six hour premium payment on
the ground that he worked on a rest day as well as on his birthday.
The claim has been vigorously disputed by Carrier but we find, as we did
in Award 5217, that the stare decisis principle is applicable and of compelling
force in this case. We find great merit in that principle and believe that it
should be evenly and strictly followed.
While the wording, location and form of the controlling rules in this
case differ somewhat from those considered by many of the sustaining awards
that have passed upon the issue, the obligations created by the agreements and
the broad principles applicable to them are substantially the same and we find
no justification for avoiding the impact of stare decisis here.
Carrier's contention that the claim must nevertheless fail because of a
well established past practice is not persuasive, since it is based on merely a
general assertion and not on evidence of specific instances where work was
performed on both a holiday and rest day. While the conduct of the parties to
an agreement may sometimes be expressive of intention and mutual interpretation, we are not in a valid position to make that determination unless we are
referred to specific evidence of a pattern or course of conduct.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Charles C. McCarthy
Executive Secretary
Dated at Chicago, Illinois, this 4th day of December, 1967.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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