The Second Division consisted of the regular members and in
addition Referee A. Langley Coffey when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO
(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 coach repairer at Roanoke East End Shops.
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 under date of October 16, 1965, contending that claimant was entitled to eight (8) hours birthdayholiday 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:
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 Award 9640 and Second Division Awards 2277, 2800, 5230, 5231, 5232, and 5233.
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 "*** 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 entitled for that day, if any.", is not applicable as the birthday did not occur on other than a work day of the work week of the individual, and (3) claimant would not have been entitled to any other pay for that day under any other rule, agreement or practices on this property; therefore, the claim is without merit and should be denied by the board.
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.
The submissions have been reviewed and duly considered in connection with a reexamination of Docket No. 5516, Award No. 5751, and Docket No. 5517. Award No. 5752.
We find that the submissions are the same in all Dockets without material points of distinction.
Award Nos. 5751 and 5752, have been critically examined for possible error and, finding none, said Awards are found to be controlling in this Docket.
These awards are completely erroneous and have no precedent value whatsoever.
The overwhelming number of prior awards (92) issued by eight different referees - all in favor of the carriers' position - would indicate a callous disregard for stare decisis, especially so when the neutral makes no effort to show where the prior awards were palpably erroneous.
A weak attempt is made to sustain the neutral's position when he indicates that the parties used "needless language" in the agreement and he suggested what language should have been used.
It is abundantly clear that this neutral went outside of the current agreement governing the parties involved to sustain claims which had absolutely no merit, as the decision to sustain the instant claims is based on conjecture, misinterpretation or misapplication of the contract language.