Award No. 5539 Docket No. 5392
The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
EMPLOYES' STATEMENT OF FACTS: Carman Edward Winchell, hereinafter referred to as the Claimant, is employed in his respective craft and class by the Great Northern Railway Company, hereinafter referred as the Carrier, in its Mechanical Department facilities located at Havre, Montana. Claimant holds a regularly assigned position designated as "Car Shops and Trainyards".
Claimant's birthday was September 12, 1965. Claimant reported for work that date at 3:00 P. M. He was told to go home at 3:05 P. M. At 4:00 P. M., that same date, another carman, Gordon Jensen, was called from the overtime call list to report to work.
A grievance was filed on September 16, 196'5, by the local chairman, on behalf of the claimant requesting 8 hours pay, at the rate of time and one-half, account claimant denied the right to work on his birthday as provided in the agreement.
This dispute has been handled with all officers of the Carrier designated to handle such disputes, including the highest designated officers of the Carrier, all of whom have declined to make satisfactory adjustment.
This agreement effective September 1, 1949, as subsequently amended is controlling.
POSITION OF EMPLOYES: It is respectfully submitted that the only issue in dispute between the parties is whether or not the claimant was entitled to work on his birthday, September 12, 1965.
For the foregoing reasons, the Carrier respectfully requests that the claims of the employes 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.
Claimant was a regularly assigned employe whose birthday fell on a work day of his work week. He was instructed not to work at 3:00 P. M. on September 12, 1965, and another carman was called from the overtime call list to report to work on said date. Petitioner contends that claimant had a preferential right to work on his birthday pursuant to Article II - Holidays, Section 6, paragraph (g) of the November 21, 1964 Mediation Agreement and the Memorandum of Agreement No. 29 dated September 28, 1954, and revised on March 1, 1955, the pertinent part of which is as follows:
Carrier contends that claimant's position was not filled, although an additional carman was called from the overtime call list to augment the reduced force on the date of claim as a direct result of operational requirements. under Rule 17(e) of the effective Agreement between the parties. Furthermore, Carrier contends that Memorandum No. 29 permits reduction in force on holidays and does not require that a minimum number of employes or any particular employes be worked on holidays.
Article II - Holidays, Section 6, paragraph (g) of the Mediation Agreement of November 21, 1964 provides as follows:
Despite 'Carrier's contention that the March 1, 1955 Memorandum of Agreement has limited application, the applicable language found in paragraph A thereof is clear and unequivocal as to the rights of regularly assigned employes to work on holidays when the same number of employes are required as are assigned to work that same day of each week.
In the instant dispute, Petitioner has established claimant was ordered not to work on his birthday which was his regularly assigned work day, that another carman was called in after claimant was denied an opportunity to work on his birthday - holiday and that there was no reduction of force on said date. Accordingly, the claim will be sustained. (Award 5236; Third Division Awards 15598 and 15638) .