The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
1. That Machinist W. L. Dubois (hereinafter referred to as claimant) was improperly compensated under applicable terms of current controlling Agreements while on vacation.
2. That accordingly, the Carrier be ordered to additionally compensate claimant in the amount of eight (8) hours' pay at the pro rata rate for the date of September 13, 1965, the date of claimant's birthday falling on a work day of his assigned work week while on vacation.
EMPLOYES' STATEMENT OF FACTS: Machinist W. L. Dubois, hereinfter referred to as the Claimant, was regularly employed by the Southern acific Company (Pacific Lines) hereinafter referred to as Carrier, as a fachinist in Carrier's Sacramento General Shops, with work week rylonil:t. trough Friday, rest days Saturday and Sunday.
Claimant took one week of his 1965 vacation September 13 tl:iough ~ptember 17, 1965, both dates inclusive, returning to service Monday, Septemx 20, 1965. Claimant's birthday was Monday, September 13th, a vacation Ly of his vacation period, for which he was paid a day's vacation pay. owever, Carrier failed to allow him birthday holiday compensation for the y, Monday, September 13th.
Claim was filed with proper officer of the Carrier under date of September 1965, contending that Claimant was entitled to eight (8) hours' Birthday )liday compensation for his birthday, September 13th, in addition to vacation y received for that day, and subsequently handled up to and including the, ;hest officer of Carrier designated to handle such claims, all of whom dined to make satisfactory adjustment.
prior to the adoption by negotiation of the new rule which the Division, of course, is not empowered to do.
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.
Carrier reserves the right, if and when it is furnished with the submission which has been or will be filed ex parte by the Petitioner in this case, to make such further answer as may be necessary in relation to all allegations and claims as may be advanced by the Petitioner in such submission, which cannot be forecast by the Carrier at this time and have not been answered in this, the Carrier's initial submission.
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 machinist with a Monday through Friday work week, seeks pay for an additional eight hours at the pro rata rate for his birthday, which occurred on Monday, September 13, 1965, while he was on vacation. Petitioner avers that claimant is entitled to an additional day's pay for his birthday vhich fell on a "vacation day" of his vacation period under Article II, Section. 6 )f the February 4, 1965 Agreement, which in part provides as follows:
Petitioner contends that a birthday, which occurs on what would ord narily be a work day during an employe's vacation, must be considered a "other than a work day of the work week of the individual employe" undE the provisions of Article II, Section 6 (a) of the February 4, 1965 Agree ment, and that such an employe is entitled to receive eight hours' pay at tl pro rata rate for the birthday holiday in addition to any other pay, such < vacation pay, to which he is otherwise entitled for that particular day. Pet tioner asserts that Article I, Section 3 of the August 21, 1954 Agreement w: not amended by the 1965 Agreement to reflect the additional holiday and not applicable to birthday-holidays.
The fundamental issue involved in this dispute has been the subject numerous conflicting Awards. Historically, the "maintenance of take-home pa; principle arose out of the June 10, 1942 Interpretations to Article VII (a)
the December 17, 1941 National Vacation Agreement, and has been applied to paid holidays falling on what ordinarily would be regularly assigned work days of employes during vacation periods. In fact, this practice was incorporated under the provisions of Article I, Section 3 of the August 21, 1954 Agreement as to seven (7) recognized holidays.
Pursuant to the recommendations of Presidential Emergency Boards 161, 162 and 163, an additional recognized holiday was agreed to by the parties which is provided by Article II, Section 6 of the February 4, 1965 National Agreement. This agreement specifically amends the earlier Agreement of August 21, 1954, as amended by the Agreement of August 19, 1960, but neither alters nor modifies Section 3 of Article I or Article II of August 21, 1954 National Agreement by including any reference to the eighth paid holiday, an employe's birthday. Consequently, we must assume that the parties intended that only the provisions of Article II, Section 6 of the February 4, 1965 Agreement would be controlling as to eligibility for the birthday holiday provided therein.
Were the language found in Article II, Section 6 entirely clear and unambiguous, the instant claim could be resolved without consideration of either past practice or previous Agreements between the parties, but here we find plausible conflicting interpretations of the applicable language of this Agreement. Carrier urges that a birthday holiday, which occurs during an employe's vacation on what would ordinarily be a work day, must be considered "a work day of the work week of the individual employe" under Article II, Section 6(a) for wrich such employe is entitled to receive only one day's compensation. Petitioner, with equal vigor, urges that an employe's birthday, which occurs on what would ordinarily be a work day during a vacation period, constitutes "a day other than a day on which he otherwise would have worked" for which said employe shall receive eight hours' pay at the pro rata hourly rate in addition to his vacation pay.
Careful consideration of prior conflicting Awards as well as historical practice pertaining to vacations requires us to conclude that claimant's birthlay during his vacation period occurred on a regularly assigned work day of its regular work week as he was constructively on duty in the sense that under krticle 7(a) of the 1941 Vacation Agreement, he was entitled to be no worse )ff as to his daily compensation while on vacation than he would have been iad he remained at work on his regular assignment. Had the Claimant been in duty when his birthday occurred, he would have been given the day off vith pay under Article II, Section 6(a) of the 1965 Agreement, which is irecisely what occurred during his vacation period.
As determined in our Award 5230, the Claimant's case concerns a birthay that occurs on a work day of his work week for which he was entitled to eceive the day off with pay. Such finding is consistent with reports of Presiential Emergency Boards which have previously considered this issue.
We differ with the conclusion reached in Award 5251 that the applicable nguage in Article II, Section 6 of the 1965 Agreement is "clear and meaningil:' The parties thereto could have simply stated that when a birthday holiday .curs within an employe's vacation, such employe would be paid for said >liday in addition to his vacation pay, provided he otherwise would have been heduled to work that particular day. Nowhere do we find such clear and Anitive language, and therefore, historic practice, prior interpretations,