The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 42, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: Carman R. H. Owens, hereinafter referred to as the Claimant, is employed by the Atlantic Coast Line Railroad, hereinafter referred to as the Carrier, as a Car Inspector at Dothan, Alabama. His 1965 vacation was scheduled to begin October 11 and continue through October 24, 1965; his birthday was October 21st. This date, of course, fell within the scope of his vacation assignment.
The Carrier found it necessary to call the Claimant to work on October 21st. He was paid:
The Employes contend that this is 12 hours at pro rata rate short of what he should have been paid.
This claim has been progressed successively on appeal, as prescribed under the controlling agreement, up to and including the highest designated
Claimant has been overly compensated for October 21, 1965, to the extent ,of 8 hours at straight time rate, and the claim should 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 wthin 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 worked on his scheduled vacation from October 11 to October 25, 1965. His birthday occurred on October 21, 1965. He was paid 8 hours straight time for the vacation day and 8 hours straight time for his birthday in addition to 8 hours at time and one-half rate for working on said vacation day. He is claiming an additional 8 hours at time and one-half rate for working on said birthday holiday.
The Organization's position is that Appendix IX, of paragraph 11 of the November 11, 1940 Agreement as amended, authorizes the payment of the claim as herein claimed; that Article II, Section 6(a) and (g) of the November 21, 1964 Agreement provides for employes who are required to work on their birthday shall be paid time and one-half rate in addition to their regular birthday holiday pay.
Article lI, Section 6(a) and (g) of the November 21, 1964 Agreement provides:
The Carrier's position is that Claimant qualified under Section 6(c) of the November 21, 1964 Agreement and the amount provided in said section was paid to Claimant; that Claimant's birthday was counted as a day of his
vacation as set forth in Section 3, Article I of the August 21, 1954 Agreement, and, inasmuch as Claimant was allowed holiday pay for his birthday,. he received the daily compensation for said day to which he was entitled; that Claimant was paid more than he was entitled to inasmuch as Claimant received 40 hours' pay for his work week assignment in addition to the hours. worked at time and one-half rate of pay; that Article II of the February 4, 1965 Agreement did not amend that part of Article I, Section 3, of the August 21, 1954 Agreement in regard to: ". . . such day shall be considered as a work day of the period for which the employe is entitled to vacation."; that the birthday holiday is to be treated the same as the other seven recognized holidays when it falls on a work day of a work week of a regularly assigned employe receiving vacation pay; that inasmuch as no overtime was assigned to Claimant's position, any overtime accruing to this position was casual overtime; that Carrier complied with Appendix IX, paragraph 11, of the Agreement when it paid Claimant for all hours worked at time and one-half rate in addition to his vacation pay; that Rule 4-A, paragraph (a) of the Agreement prohibits overtime on overtime.
This claim is analogous to the many claims before this Division and the Third Division concerning a fact situation where Claimant worked on his rest day which also happened to be his birthday, and the vast majority of said awards held that an employe was entitled to be paid time and one-half rate for working on his rest day plus time and one-half rate for working on his birthday in addition to 8 hours' pro rata rate for his birthday or that he was entitled to be paid twice at overtime rates. See this Division Awards. 5331, 5332, 5401, 5402 and 5433, where such claims were sustained on the basis of "Stare Decisis." See Third Division Awards 15398, 15440, 15764, 15875, 15892, 16101, 16153, and 16291.
Therefore, inasmuch as we have held that said Awards are not palpably erroneous, and inasmuch as the issue in said Awards above set forth is
similar to the issue involved in this dispute, we are compelled to sustain this claim.