NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O.
(CARMEN)
EMPLOYES' STATEMENT OF FACTS: E. O. Marlin, hereinafter referred to as the claimant, is employed by the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, at Little Rock, Arkansas. Claimant is assigned to relief position on Jobs Nos. 11, 12 and 13, hours 7:00 A.M. to 3:00 P.M., Monday through Friday, rest days Saturday and Sunday.
The claimant's birthday occurred on Wednesday, February 15, 1967 and his regular assignment on that date was filling Job No. 12, however, the claimant was advised not to report for work on that day, but the carrier found it necessary to fill this position on this date (February 15, 1967) but failed to comply with the rule and past practice, i.e., filing the job the same as other holidays and working the incumbent, which constitutes the basis of the claim.
This case was progressed on the property in line with Rule 31 of the controlling agreement of June 1, 1960, and the carrier and employes agreed to hold this case in abeyance pending decision from your Honorable Board in a similar case referred to as Docket 5152. Decision was handed down in this case by your Honorable Board in Award 5523 sustaining the employes' Bntire claim, i.e., eight (8) hours at the punitive rate, however the carrier has refused to honor the provisions of this award in the instant case and is the reason the employes have brought this case before your Honorable Board for adjudication.
dispute, Rule 5 in the agreement on this property including the Note thereto is "highly irrelevant" for the same reasons that reference to the train yard holiday board was highly irrelevant in the case before your Board in Award 5321.
In the instant claim the note to Rule 5 would come into play only if the force assigned to work was inadequate and the employe who had the birthday was also needed. On the date of claim, the men assigned at the North Little Rock train yard included approximately 50 carmen on running repairs and on servicing freight cars, 68 car inspectors, and 20 carmen on heavy repairs. All assigned on February 15, 1967, worked their regular shift except claimant. The force was adequate to perform the work. The carrier had no need to resort to the procedures set forth in the note to Rule 5 and did not do so. The regular force was not augmented or increased. The regular force simply worked one man short that day deferring, if necessary, any of the repairs which would not delay the operation of the trains.
The claimant in this dispute enjoyed his birthday off with pay. The Carrier was not obligated to call claimant under the provisions of the note to Rule 5. The carrier fully complied with the birthday holiday rule by giving Claimant the additional day off with pay.
For the reasons fully set forth herein, the claim in this docket is not supported by the rules cited and should be declined.
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's birthday occurred on one of his regularly assigned work days, Wednesday, February 15, 1967. He was told not to report for work on that day. Claimant is contending that Carrier violated Article 11, Section 6(g) of the November 21, 1964 Agreement and the note to Rule 5 of the Agreement by failing to call him for work on said day.
It is Claimant's position that inasmuch as Claimant's job was worked on his birthday, Carrier was required to call him for work on such day because of aforesaid rule requirements.
As this Board said in Award 5948, the determination of this dispute hinges on whether or not Claimant's position was worked on the date in question. Carrier had the right to blank Claimant's position on said birthdayholiday, but if it was filled by another employe, then we must sustain the claim in accordance with the decisions reached by this Board in Awards 5236 and 5523, when it found:
Claimant is employed as a relief employe in the train yards at North Little Rock, Arkansas. Approximately 140 carmen, 19 carmen helpers and 20 carmen apprentices work at the repair car facility and train yard. Claimant was regularly scheduled to work Monday through Friday, 7:00 A.M. to 3:00 P.M., filling in for other carmen on their days off. Claimant states that his regular assignment for February 15, 1967, his birthday, was filling "Job #12", not otherwise identified in the record.
Carrier asserts that Claimant fills rest days of other car inspectors in the train yard three days a week and rest days of car repairers on the repair track two days a week. Carrier's Exhibit "1" shows Claimant's assignment as Car Inspector Job #E, starting point Rip and North end.
The Organization categorically states that Claimant's job was worked on February 15, 1967 and the Carrier categorically states that it was not worked on said date. The disagreement appears to stem from what can be implied from the meager record: (a) that car inspections that Claimant would have performed had he worked were performed by other Carrier inspectors, and (b) that no extra employe was called in to do this work on Claimant's birthday.
The record fails to disclose with preciseness what particular work Claim. ant would have performed had he been called to work on his birthday and the extent, if any, that the work was performed by other employes, and the extent, if any, that his work was not performed on said day.
Therefore, it is our opinion that the Organization failed to meet its burden of proving in this instance that Claimant's job was worked on his birthday, and we are thus compelled to deny the claim.
"(g) Existing rules and practices thereunder governing whether an employee works on a holiday and the payment for work performed on holidays shall apply on his birthday."
"We have given an example of a recent holiday where the heavy repair track and the cleaning track were shut down on the holiday. The force in the train yard and at the spot repair track were required on the holiday. This is typical of terminals where through freight and local trains operate on holidays in the same volume as on other days. The force required to keep the trains moving is required on the holiday but work not directly related to the movement of trains is deferred. In this case only one car inspector was absent on date of claim, the date being the car inspector's birthday holiday. Since the entire heavy repair track can be shut down on the seven recognized holidays, it is apparent that the force can work one man short by reason of the birthday holiday. In this case, Carman Apprentice Waddle who had been upgraded and was filling a carman's position was regularly assigned to work on the date of claim. * * *. "
"* * * The regular force was not augmented or increased. The regular force simply worked one man short that day deferring, if necessary, any of the repairs which would not delay the operation of the trains."
LABOR MEMBERS' DISSENT
TO AWARD 5949.
"The Organization categorically states that Claimant's job was worked on February 15, 1967 and the Carrier categorically states that it was not worked on said date. The disagreement appears to stem from what can be implied from the meager record: (a) that car inspections that Claimant would have performed had he worked were performed by other Carrier inspectors, and (b) that no extra employe was called in to do this work on Claimant's birthday.
Therefore, it is our opinion that the Organization failed to meet its burden of proving in this instance that Claimant's job was worked on his birthday, and we are thus compelled to deny the claim."