SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L.-C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: The aforesaid employe, hereinafter referred to as the Claimant was regularly employed by the Norfolk & Western Railway Company hereinafter referred to as the Carrier as Carman at Winston Salem, N. C.
Claimant's birthday fell on a vacation day of his vacation period for which he was paid a day's vacation pay. However, Carrier failed to allow him birthday holiday compensation.
Claim was filed with proper officer of the Carrier, contending that Claimant was entitled to eight (8) hours Birthday Holiday compensation for his birthday holiday, in addition to vacation pay received for that day, and subsequently handled up to and including the highest officer of the Carrier designated to handle such claims, all of whom declined to make satisfactory adjustment.
The Agreement effective September 1, 1949 as subsequently amended is controlling.
POSITION OF EMPLOYES: It is respectfully submitted that the Carrier erred when it failed and refused to allow claimant eight (8) hours birthday holiday compensation for his birthday holiday, in addition to vacation pay allowed for that day. Article II of the November 21, 1964 Agreement, reads in pertinent part as follows:
Article 1, Section 3, makes provisions for holidays which occur during an employee's regular work assignment while he is on vacation by specifically stating the day will be considered as a day of vacation.
The basic question in this dispute has been firmly settled and consistently ruled upon by the Board. In Third Division Award 9635, Referee Johnson, it was stated in pertinent part:
Also, see Third Division Awards 9640 and 9641, and Second Division Awards 227 7 , 2302, 34 7 7, 3557, 5230, 5231, 5233, 5310 and 5311.
It is evident from the foregoing facts that: (1) Section 6(a), Article II of the November 21, 1964 Agreement does not provide for payment for holidays which fall within a vacation period. (2) The quoted portion of Section 6(a) stating "· ` :1 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 lie is otherwise entitled for that day, if any.", is not applicable as to the birthday did not occur on other than a work day of the workweek of the individual, and (3) Claimant would not have been entitled to any other pay for that day under any other rule, agreement or practice on this property; therefore, the claim is without merit and should be denied by the Board.
Carrier would particularly like to call to the Board's attention Second Division Awards 5230, 5231, 5233, 5310 and 5311. These were identical claims to the one here being considered and in all cases the claims were denied. Carrier will not burden the record by quoting these awards, but a careful reading :vigil reveal that the position is fully denied.
FINDINGS: The Second Division of the Adjustment Board, upon the %vhole 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 regularly employed by Carrier at Winston-Salem, North Carolina. Claimant was assigned his vacation, January 31 through February 25, 1966. His birthday fell on Thursday, February 3, 1966, while he was on vacation. The birthday occurred on what would have been a working day of Claimant's regular work-week assignment. Carrier paid Claimant his vacation pay, but has refused to allow him birthday compensation. Claim was made by the Organization on behalf of Claimant for 8 hours birthday holi-
It is well settled that prior to November 21, 1964, if one of said 7 enumerated holidays fell during an employe's vacation, this employe would not be entitled to an additional day's pay. On May 22, 1953, Carriers were served with a Section 6 notice, a proposal calling for compensation on holidays including pay for such holidays when they fell on one of the employe's vacation days and vacation period to continue to be extended an additional day. The parties were unable to negotiate an agreement on this point and an emergency board was appointed. This emergency board did not recommend pay for the 7 enumerated holidays when they fell on one of the employe's regular vacation days. The employes agreed to this, and the language of this agreement is contained in Section 4 of the Agreement. On May 31, 1963, another Section 6 notice was served on the Carriers asking for two additional paid holidays, among other things. Again, the parties failed to agree and another emergency board was appointed. This Emergency Board recommended one additional paid holiday to be agreed upon by the parties. The parties negotiated the birthday holiday and added this agreement to the August 21, 1954 holiday agreement as a new Section 6.
Since that time, there have been numerous claims filed before this board by various Organizations involving this same dispute. A careful examination of numerous awards indicate that the question involved in this dispute was for a period of time interpreted both favorably and unfavorably for the various Claimants.
Award 5230 (Weston) was a denial award which considered Presidential Emergency Board No. 106 and its recommendation "that the vacation period not be increased by allowing additional vacation days where holidays fall in the base vacation period and that when a holiday falls on what would have been a work-day of the employe's regularly assigned work week, such holiday shall be considered as a work-day of the period for which he is entitled to vacation." This award also considered Emergency Board No. 130 which upheld the doctrine of maintenance of take home pay. This award failed to find any requirement for an extra day's pay when a birthday or any other holiday fell within the vacation week on a day that is a work-day of the employe's regular work-week and attached particular significance to this point in considering it with the interpretations and Emergency Board reports. In Award 5251 (Dolnick), this Board sustained a claim on the point involved in this dispute, but failed to take into consideration the recommendations of Emergency Boards; the agreement as u whole; and the history giving rise to the birthday holiday. In Awards Nos. 5310 and 5311, both by Referee Johnson, claims on this identical dispute were denied and held that the interpretation of June 10, 1942, and all agreements subsequent to Article VII(a) of the December 17, 1941, National Vacation Agreement are in full force and effect and must be followed by this Board. In Award 5372 (Knox), a similar claim to the claim involved in this dispute was sustained. However, it was later found in Award 5414 (Ritter) that Award 5372 failed to recognize that a birthday occurring on a vacation should be considered in the same manner as other holidays that occur during a vacation. Since Award 5414, this Board has denied similar claims in Awards 5468 (Ives), 5645 (Ritter), 5454 (Coburn), 5442 (Kane), 5252 (Murphy), 5581 (Dugan). This Board finds that there are relatively few sustaining awards when compared to a total of more than 75 denial awards by Referee Weston, Johnson, Ritter, Kane, Coburn, Ives, Murphy and Dugan. denial awards are in palpable error and they will, therefore, be followed.
If the doctrine of stare decisis has any meaning, it would certainly and overwhelmingly apply in this instance. This Board fails to find that these
denial awards are in. palpable error and they will, therefore, be followed. It is the position of this -Board, in the interest of stabilizing the railway industry, to be consistent in its interpretation of contracts. To be otherwise would create chaos in the industry. It is not this Board's function to rewrite or add to contracts and agreements entered into between parties to a dispute; the proper place for the submission of the question involved in this dispute is at the negotiation table, not before this Board.
The argument presented in prosecuting this claim contained no new material, and this question has been too well settled to give it further consideration.