Award Number 5881 Docket Number 5645 2-PCT-MA-'70
The Second Division consisted of the regular members and
in addition Referee William H. Coburn when award was rendered.
EMPLOYES' STATEMENT OF FACTS: The instant dispute arose at the Carrier's Harrisburg Enginehouse, Harrisburg, Pa., where Claimant held a regular assignment as machinist on the "C" trick, with rest days of Sunday and Monday.
On Monday, March 22, 1965, Claimant worked eight hours and was compensated '8 hours at his overitme rate for work performed on one of his rest days. The day in question also being his Birthday, he was paid an additional eight hours at his straight time rate as compensation for his birthdayholiday.
He was not compensated an additional eight hours at his overtime rate for working his birthday-holiday.
On April 2, 1965, the Local Chairman filed a claim with the Foreman, on behalf of Claimant, requesting an additional eight hours pay at the overtime rate for working the birthday-holiday. A Copy of said claim is herewith submitted as Employes' Exhibit "A".
The Foreman denied the claim on April 9, 1965, and, on April 15, 1965, the Local Chairman rejected the Foreman's decision, and filed an appeal with the Superintendent of Personnel.
The Superintendent of Personnel denied the appeal on May 19, 1965, and, on June 16, 1965, the Local Chairman rejected the Superintendent's decision, and requested that a joint submission be prepared for further handling of the case.
On June 21, 1965, the General Chairman filed an appeal with the Manager of Labor Relations.
It is respectfully submitted that the National Railroad Adjsutment Board, Second Division, is required by the Railway Labor Act to give effect to the said Agreement, which constitutes the applicable Agreement between this Carrier and the Railway Employes' Department A. F. of L.-C. I. O. and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, First, subsection (i) confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties to it. To grant the claim of the Organization in this case would require the Board to disregard the Agreement between the parties, hereinbefore referred to, and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by parties to the applicable Agreement. The Board has no jurisdiction or authority to take any such action.
The Carrier has shown that the Agreement applicable here has not been violated and that the Claimant is, not entitled to the compensation claimed.
Therefore, the Carrier respectfully submits that your Honorable Board should dismiss or deny the claim of the Organizaiton in this matter.
The Carrier demands strict proof by competent evidence of all facts relied upon by the Employes, with the right to test the same by cross-examination, the right to produce competent evidence in its own behalf at a proper trial of this matter, and the establishment of a proper record of all of the same.
All data contained herein have been presented to the employes involved or to their representatives.
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 regularly assigned machinist whose rest days were Sunday and Monday, worked eight hours on Monday, March 22, 1965, which was his rest day and his birthday. He was paid eight hours at the straight time rate and eight hours at the overtime rate. The claim is for an additional eight hours at the time and one half rate for his having worked his birthdayholiday.
The applicable contract rules in this dispute are Section 6 (g) of Article II of the Mediation Agreement of February 4, 1965, and paragraph (a) and (b) of Rule 4-A-2 of the basic Agreement. They read as follows:
The issue of what constitutes proper compensation under the foregoing circumstances and rules has been considered and disposed of by this and other Divisions of the National Railroad Adjustment Board on numerous occasions. The resulting awards are in conflict. Some sustain the claim for payment of an additional eight hours at the time and one-half rate upon the rationale that where there are two separate rules and no qualifying exceptions, two separate payments are in order. (3rd Division Award 15000, Referee Zumas). Others deny such payment on grounds that (a) the parties did not intend under the holiday pay provisions to permit the accumulation of "overtime on overtime" (2nd Division Award No. 5204, Referee Knox) and (b) the holiday and rest day rules merely set the rate of pay for work performed on a day when the holiday and rest day of the employe coincide. (2nd Division Award 5317, Referee Johnson).
Based upon a thorough review of the reasons and findings of all awards cited in this dispute, and having in mind the defenses made by the Carrier, we are persuaded that the position of the Employes here constitutes a sound interpretation of the applicable rules. To hold otherwise would, it appears to us, deprive a covered employe of compensation to which he is entitled as a matter of contractual right merely because of a coincidence, i. e., his birthday and rest day occur on the same day he works.