The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. 0. (Carmen)
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 factual situation in this case is identical to that contained in Award No. 6087 as well as the issue, the parties and the rules. We buttressed our decision in that case on Award 5236 (Johnson) among others and held it to be controlling. We hold the same in this case and will sustain the claim.
The Carrier refused to allow the claims in Awards 6087, 6088, 6089 and 6090 although fully aware of sustaining Awards 5236, 5523, 5975 and 5976. The Carrier requested a reconsideration of the issues in dispute on the premise that the earlier awards are based on allegations of facts advanced by the empleyes which are false.
The Birthday Holiday Rule became effective January 1, 1965, and the first birthday holiday claims were filed in January of that same year when the Carrier from the Mart gave shop craft employ es their birthday holiday off with pay. The employes cited Section (g) of Article II of the Agreement of November 21, 1964 to the effect that existing rules and practices governing whether an employe works on a holiday shall apply on his birthday. The rule giving the employes the seven recognized holidays (New Year's Day, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas Day) had been in effect lonn before the adoption of a 40-hour week on September 1, 1949. The Note to Rule 5, upon which the employee rely, became effective on September 1, 1949. The whole argumet in all of the birthday holiday claims, beginning with the first claim filed in January 1965, was based an allegations as to the "existing rules and practices * * * governing whether an employe works on a holiday * * * " during the sixteen years from September 1, 1949, when the Note to Rule 5 became effective, to January 1, 1965, when the Birthday Holiday Rule became effective.
In the earlier dockets, the Carrier did not anticipate that a dispute would arise as to the existing practices governing whether an employe worked cn the seven recognized holidays during the 16-year period from September 1, 1949 to January 1, 1965, and merely made the statement, which the Carrier felt should have been sufficient, that work on holidays was distributed on the basis of an overtime board. The employes, on the other hand, made the allegation that during this 16-year period that if a man's job worked, the man worked. These allegations of fact are in direct conflict one with anotber. Neither party introduced any proof to support their allegations of fact. The referees in the earlier awards chose to believe the employes' allegations of facts and reached sustaining awards.
In the dockets to which this dissent applies the Carrier had an opportunity to submit proof of its allegation of facts that holiday work on this Carrier is distributed from an overtime board, usually a rotating overtime board, although in one case from a seniority overtime board. The Carrier's Exhibits to its Submissions and Rebuttals in the four dockets to which this dissent applies contained proof of the Carrier's allegation of facts. The Carrier representative in the oral hearing before the referee specifically requested reconsideration of the issues for the reason that the earlier awards were based on the employes' allegation of facts, which were false, and that the Carrier in these dockets has offered proof as to the existing practices governing whether an employe worked on the seven recognized holidays and that the Carrier was entitled to a reconsideration of the issues %vhere it is proven that .earlier awards are based on incorrect facts.
Upon examination of the four awards to which we dissent, we find they make no reference whatsoever to the Carrier's argument upon which the request for reconsideration was based. The basis for reconsideration is the
practice governing whether an employe worked on any of the seven recognized holidays. The awards are devoid of any finding as to the "existing rules and practices thereunder governing whether an employe works on a holiday," that is, the seven holidays which have been recognized for many years and which is the only matter in dispute in these dockets. The referee chose to ignore the Carrier's sole argument in these dockets apparently for the reason he was not able to refute the proof offered by the Carrier in support of its allegation of fact but was unwliling to overturn the previous awards based on false allegations of facts. Awards which ignore the principal contention of either party have no precedent value and these awards fall in that category.