The Second Division consisted of the regular members and in
addition Referee Joseph S. Kane when award was rendered.
SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
As the claimants' birthday fell on "what would be a work day of" their "regularly assigned work week", this day was properly charged as a day of vacation under the August 21, 1954 and November 21, 1964 Agreements. Accordingly, this Board should rule that this claim for an additional day's pay at the pro-rata rate, based upon the erroneous assertion that under the erosions of Section 6 (a )of the November 21, 1964 Agreement, claimants' birthday did not fall on a work day of their assignment, is without merit. Similarly, Petitioner's allegation that the scheduling of claimants' vacation period to begin at the same time as the other employes at Susquehanna Coach Shop "was arbitrarily assigned" is nothing more than mere words, and as. Article 4 (b) of the Vacation Agreement fully supports Carrier's right to. schedule group vacations under such circumstances, this allegation by Petitioner should be also held to be without merit.
Based upon the facts and authorities cited, Carrier submits that this. entire claim is totally without substance or support, and should be denied in its entirety.
All data contained herein are known to or have been discussed with. Petitioner.
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.
The Claimants, three in number, were regularly employed Monday through Friday, rest days Saturday and Sunday. The vacation period extended from July 2 to August 1, 1965. The claimants qualified for vacations and while on their vacations their birthdays fell on a day of their vacation, respectively Friday, July 30; Wednesday, July 21; Wednesday, July 14; for which they were paid a day's vacation pay. Carrier failed to allow them birthday-holiday compensation for an additional eight (8) hours holiday pay for July 30, 21 and 14.
The question at issue is: Were the claimants entitled to eight (8) hours Birthday-Holiday compensation in addition to vacation pay?
The Organization offers in support of the claims Article II-Holidays,. Section 6(a) being pertinent, reads as follows:
Thus, a day of vacation is a non-work day and they should under the above agreement receive " * * * any other pay to which they are otherwise entitled for that day, if any." This would include Holiday Pay.
The Carrier also contended that a vacation day was a work day, under Article II-Holidays, Section 6(a), and provided for a day off with pay which the claimants received. Furthermore, that the language-
does not apply to situations as presented herein, but to non work days. That a vacation day is a work day. That as the claimants were on vacation and a holiday occurred such birthday holiday should be treated as any other holiday. Article I-Vacations, Section 3.
The issue in this dispute has been recently before the Board in Award 5251 sustaining, 5230 denial, 5310 denial, 5372 sustaining, 5414 denial. Complete reviews of the subject have been made, both historically and economically, of the background that brought this issue before the Board. Nothing more can be added. However, an analysis of Article II, Section 6(a), Holidays, fails to indicate either expressed or implied that a birthday holiday observed while on vacation should be treated differently than any other holiday. Article I, Section 6(a) states: "For regularly assigned employes if an employe's birthday falls on a work day of the work week of the individual employe he shall be given the day off with pay * * * " On the facts before us the claimant was a regular assigned employe, on vacation, observing his birthday holiday, the day was considered a work day; for the payment of vacation pay; the vacation agreement also provides in Article III-Vacations, Section (a), "Effective with the calendar year 1965, an annual vacation of five (5) consecutive work days with pay will be granted to each employe * * *." Other holidays observed during Vacation periods are also considered work days. He received the day off with pay.
In Article I -Vacations, Section 3, " * * * Any day which by agreement has been substituted or is observed in place of any of the seven holidays enumerated above, falls on what would be a work day of an employe's regu'arly assigned work week, such day shall be considered as a work day of :he period for which the employe is entitled to vacation." Thus, the rules lave recongized a day as a work day although no duties have been performed.
The remaining portion of Section 6(a) of Article II-Holidays, "if an employe's birthday falls on other than a work day of the work week of the individual employe he shall receive eight hours' pay at the pro rata rate of the position to which assigned in addition to any other pay to which he is otherwise entitled for that day, if any." This language applies to a regularly assigned work week wherein he would receive birthday holiday pay plus any other pay accruing to the position if not on a credited work day. This situation is not present in the facts at issue, as a vacation day is considered a work day. The language of the section is silent on the subject of vacations, although providing for compensation on work days and other than work days which would imply rest days.
A further review of Article II-Holidays, Section 6(c), provides for the qualifications necessary to be eligible for holiday pay:
Thus, to qualify for birthday holiday pay an employe must be compensated for work days prior to and subsequent to the holiday. Thus, if he must be credited for work days for those days it is a logical conclusion to presume that the vacation day is considered a work day. If an employe is on vacation and observes his birthday in order to qualify the days prior to and subsequent must be considered work day in or to be paid for the holiday. However, when we examine Section 6(a) we note that he can receive only a day's pay on a work day of his birthday holiday. This pay the claimant received.
Section (f) considers situations wherein birthday holidays fall on one of the seven holidays and provides special considerations wherein the employe can have the following day or the day preceding the first day during which he is not scheduled to work following such holiday considered as his birthday holiday for the purposes of this section.
Section (g) "Existing rules and practices thereunder governing whether an employe worked on a holiday and the payment for work performed on holidays shall apply on his birthday." No rules have been changed to provide for the contentions of the claimants.
No language in any sections of the Agreement gives special consideration to employes on vacation while observing a birthday holiday.
Thus, Article II -Holidays, in its entirety, and the pertinent Section 6 (a) fails to reveal any provision for the payment of birthday holiday pay and vacation pay while an employe is on vacation in a manner different than other holidays. Article 1, Section 3-Vacations, states that certain holidays while on vacation " * * * Shall be considered as a work day for the period for which the employe is entitled to vacation. Although the birthday holiday is not considered in this section and the Holiday provision of Article II, Section 6(a), is silent on the subject of vacations, both sections of the agreement must be considered in an attempt to give some contractual constructions to the intentions of the parties, as the entire agreement encompasses the relationship of the parties and is before the Board.
The Board is of the opinion that when the parties agreed on Article II, Section 6(a)-Holidays, thus giving it separate consideration that if they intended birthday holiday payments to apply differently during vacations than other holidays they would have so included such a provision, as was included, when birthdays are observed on actual work days of the employe's work week and when birthdays are observed on other than work days of the work week.
However, the agreement does not provide specifically for birthday holidays in any place other than Article 11, Section 6(a), and that article does not specifically provide for payment for birthday holidays that fall during vacations in a manner different than the seven other holidays are provided for.
Thus, the Board is of the opinion that the claimants have failed to carry the burden of proof and establish by the preponderance of evidence that Article II-Holidays, Section 6(a), requires both vacation and birthday holiday pay when an employe is on vacation and observing his birthday.
The Board is further of the opinion that the section of the claim alleging "that while they were on their arbitrarily assigned vacation", was withdrawn by the claimants.
LABOR MEMBERS' DISSENT TO AWARD NOS. 5442,
5443, 5444, 5445, 5446, 5447, 5448, 5449 and 5450
The majority in these awards failed to properly consider the Agreements involved as pointed out by the Labor Members in their dissent to Award Nos. 5414, 5415, 5416, 5417, 5418, 5419 and 5420, which reads as follows:
We submitted to the referees Second Division Award Nos. 5218, 5219, 5220, 5221 (Weston); 5237, 5238, 5239, 5240, 5241 (Johnson); 5259, 5260, 5261 (Dolnick); 5262, 5263, 5264, 5265, 5266 (Coburn); and 5267 through 5296 (no referee), wherein the Carriers admit that this is the proper method of pay due employes who are off account of a holiday which is one of their regular work days and also their birthday. The Carrier in their submission in Award No. 5218 state the following:
The Carrier's records show that if an employe is off on a worx day for one of the seven holidays and his birthday occurs on that same day, he is entitled to the holiday pay, plus the birthday pay. It follows, then, that the employe who is off on vacation and his birthday occurs is also entitled to his vacation pay plus the birthday pay as they compare as follows:
One additional day's pay (birthday pay) pursuant to Article II of the Agreement of August 21, 1954 as amended by the Agreement of August 19, 1960, as amended by the Agreements dated November 21, 1965, February 4, 1965 and April 3, 1965.
2. One additional day's pay (birthday pay) pursuant to Article II of the Agreement of August 21, 1954, as amended by the Agreement of August 19, 1960, as amended by the Agreements dated November 21, 1965, February 4, 1965 and April 3, 1965.
Therefore, employes are by contract entitled to receive one additional day off with pay, or an additional day's pay for their birthday as the pertinent part of the controlling Agreements reads as follows:
The facts in all of these disputes are that the employes did meet the requirements set forth in the rule, they were not given an additional day off with pay, they are entitled to an additional day's pay as provided for above and the employes' claims should have been sustained.
This in addition to the Labor Members' dissents to Award Nos. 5230, 5231, 5232, 5233, 5310, 5311 and the findings in Award Nos. 5254 and 5372 points out the sound reasons why these instant awards are in error and palpably erroneous."