Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11078
SECOND DIVISION Docket No. 10864
2-MP-CM-'86
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen of the United States
(and Canada
Parties to Dispute:
(Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rule 5 of the
controlling agreement when they worked a Carman from the third (3rd) shift on
the first (1st) shift assignment of Carman A. E. Sundy which was blanked on
the May 30, 1983 holiday.
2. That the Missouri Pacific Railroad Company be ordered to canpensate Carman A. E. Sundy in the amount of eight (8) hours at the punitive 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
dispute are respectively carrier and employes 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 Organization filed a Claim on July 8, 1983, alleging that Carrier's actions on the holiday of May 30, 1983, were improper and violative of
the Agreement. In the facts of this case the Carrier had blanked Carmen's
position on the holiday, and the Claimant, who was regularly assigned to work
that day, was off with pay. On the third shift (11:00 P.M. to 7:00 A.M.) of
May 29, 1983, the Carrier held over the assigned Carman to work a late
arriving train. That Carman worked over two hours into the holiday. It is
the organization's position that under Rule 5 of the Agreement, Claimant, who
was the regular first shift incLQrtbent, was denied his right to work. Rule 5
states in pertinent part:
Form 1 Award No. 11078
Page 2 Docket No. 10864
2-MP-CM-'86
"Rule 5. RELIEF WORK, REST DAYS AND HOLIDAYS
(a) Employes assigned to rest day relief positions
and/or holiday work, or those called to take the
place of such employes, will be allowed to complete
the balance of the day unless released at their own
request.
NOTE: . . . .Men
will
be assigned from the men on
each shift who would have the day on which the hol
iday falls as a day of their assignment if the hol
iday had not occurred and will protect the work."
As such, the organization maintains that only the Claimant had the right to
work on the holiday to protect his regular assignment.
In its response on property the Carrier noted that it had followed
common practice in holding over the third shift Carman until he had completed
his work. In this case, a train arrived later than expected and, as such, the
Carman working on May 29 was held over to complete his work for two and one
half hours into the May 30 holiday. It is the Carrier's position that since
no employee was called to work on the holiday, there was no violation of Rule
5 of the Controlling Agreement.
This Board notes that under clearly similar factual circumstances _
between the same parties considering the same Agreement provision, a similar
Claim has been denied (Second Division Award 10737). We have reviewed and
concur with the reasoning of Second Division Award No. 10737. Having found
that the issue has been previously decided, we deny the instant Claim on the
basis of stare decisis.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
- e~ ~ ~
Nancy J ver - Executive Secretary
Dated at Chicago,
Illinois, this
3rd day of December 1986.