Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9977
SECOND DIVISION Locket No. 9209
2-BN-CM-184
The
Second Division
consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada, A. F. L . - C. I. O.
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc. violated Appendix "D" Nonoperating
(Shop Crafts) National Holiday Provisions of August 21, 1954 as amended when
they did not compensate Superior Carman T. Andrews for November 12, 1979,.
Veterans Day.
2. That accordingly the Burlington Northern, Inc. compensate Carman T.
Andrews in the amount of eight (8) hours. at the straight time rate.
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 dis.qute
are respectively carrier and emplDyes 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.
Parties to said dispute waived right of appearance at hearing thereon.
The relevant facts of this claim are not in dispute. In November 1979,
Claimant, T. Andrews, was regularly assigned as a Carman to Carrier's Superior,
Wisconsin facility. His work week was Monday to Friday, with Saturday and Sunday
as rest days. On November 5, 1979, Claimant was absent from work. From November
6 through November 9, 1979, Claimant was on vacation. November 10 and 11 were
Claimant's rest days. November 12 was a legal holiday. On November 13, 1979,
Claimant returned to work his regular assignment. Claimant was not paid for the
legal holiday, November 12, 1979.
The Organization contends that Carrier's failure to compensate Claimant
violates Sections 1 and 3 of Appendix "D" of the current National Holiday
Agreement of August 21, 1954 and amendments thereto. Those sections read, in
relevant part:
"Section 1.
Subject to the qualifying requirements contained in Section 3
hereof, and to the conditons thereof, and to the conditions hereinafter
provided, each hourly and daily rated employee shall receive eight
hours pay at the pro rata hourly rate for each o f the following hoj'idays:
Veteran's Day
Form 1 Award No. 9977
Page 2 Locket No. 9209
2-BN-CM-'84
"Section 3
A regularly assigned employee shall qualify for the holiday pay
provided in Section 1 hereon if compensation paid him by the Carrier is
credited to the workdays immediately preceding and following such
holiday or if the employee is not assigned to work but is available
for service on such days. If the holiday falls on the last day of a
regularly assigned employee's work week, the first rhorkday following his
rest days shall be considered the workday immediately following. If
the holiday falls on the first workday of his workweek, the last workday
of the preceding workweek shall be considered the workday immediately
preceding the holiday. (emphasis supplied)
The Organization notes that Claimant was on vacation on the workday immediately
preceding the holiday. Claimant was paid for that vacation day. Thus, the
Organization argues that the compensation paid Claimant for that day "was credited
to the workday(s) immediately preceding (the) holiday..." In the Organization's
view, then, Claimant has complied with Section 3 and should, therefore, be paid for
the legal holiday, November 12, 1979.
Carrier, on the other hand, interprets Section 3 differently from the
Organization. It argues that under Section 3 an employee must have his compensation
credited to an actual work day. Here, Claimant had a vacation day immediately
preceding the legal holiday, excluding, o f course, his two rest days. Carrier insists
that a vacation day is simply not a work day. Thus:, Carrier concludes that
Claimant is not entitled to pay for the legal holiday, November 12, 1979.
The single issue to be decided is whether compensation paid Claimant was
credited to the workday immediately preceding the legal holiday. We believe that
it was not that the the claim should fail. There are several reasons which lead
us to this conclusion.
First, Claimant was on vacation from November 6 to 9, 1979. Those days,,
then, were vacation days, not work days. In negotiating Section 3, the parties
chose their words carefully. They mandated that compensation be credited for a
"work day" and not any other kind of day. Clearly a "vacation day" is not a
"work day" even though an employee is compensated for that vacation day.
Our finding is consistent with Third Division, Award No. 23831. There,
claimant was on standby on the days immediately following the legal holiday.
In addition, he was paid four hours of pay for each of those days. In rejecting
that claim, that Board held, "While Claimant was on standby status on the Saturday
and Sunday following the holiday and received compensation for that status, Chose
days were not regular work days, as that term is applied in this industry." Thus,
it is clear that if "stand-by days" are not regular work days under Section .3,
then surely "vacation days are not regular work days within the meaning of that
section.
Form 1 Award No. 9977
Page 3 Docket No. 920SI
2-BN-CM-184
Furthermore, we disagree with the organization's contention that all compensation
under Section 3 qualifies for holiday pay, with the single exception of compensation
for sick days. We note that Section 3 does provide that, "Compensation paid
under sick-leave rules or practices will not be considered as compensation for
the purposes of this rule.
n
However, the rule itself is applicable only for
generally recognized work days. An exception is made when sick leave is used
during that work day. Here, the day in question was a vacation day. As such,
it simply did not fall within Section 3's requirement that compensation be
credited to a "sork day."
Finally, we point out that even if Claimant's vacation days are disregarded,
he was absent from work on November 5, 1979. Thus, it, too, was not a "work
day" as contemplated under Section 3. Accordingly, and for the foregoing reasons,
the claim must fail.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division ..
f
ATTEST:
- , ~ " e, ,
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 20th day of June, 1984