Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11103
SECOND DIVISION Docket No. 10430
2-soU-MA-' 8 7
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
(International Association of Machinists and
( Aerospace wbrkers
Parties to Dispute:
(Southern Railway Company
Dispute: Claim of Employes:
1. That the Southern Railway Company, hereinafter referred to as the
Carrier, willfully and knowingly violated the current Agreement, especially
Rule #33 when it refused to pay Machinist B. D. Powell eight (8) hours for the
Good Friday holiday.
2. That accordingly, Carrier be ordered to compensate Machinist B.
D. Powell, hereinafter referred to as the Claimant in the amount of eight (8)
hours at the pro rata rate of pay.
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 were given due notice of hearing thereon.
The Claimant is employed by the Carrier as a Machinist at its Atlanta
Diesel Shop. On April 8, 1982, the Claimant reported for duty at 7:00 A.M.
Five minutes later, at 7:05 A.M. the Claimant requested to be relieved indicating that he was ill. At 7:09 A.M. the Claimant was given approval to clock
out and he did so. April 8 and 12, 1982 were the Claimant's assigned work
days before and after the Good Friday holiday which was observed on April 9,
1982.
Contending that the Claimant did not perform any canpensable service
on April 8 and that he did not have any intention of doing so on that day, the
Carrier denied the Claimant holiday pay for Good Friday (April 9). In support
of the Claim, the Organization relies on Rule 33, Section 3 of the Agreement
which, in relevant part, provides:
Form 1 Award No. 11103
Page 2 Docket No. 10430
2-SOU-MA-187
"A regularly assigned employe shall qualify -
for the holiday pay provided in Section 1
hereof if compensation paid him by the Carrier
is credited to the work days immediately pre
ceding and following such holiday or if the
employe is not assigned to work but is avail
able for service on such days ***."
The same contractual provisions were interpreted in Second Division
Award No. 7174 where this Board sustained a claim for one (1) hour of work.
The Board stated:
"Third Division Award 19128 rejected the concept
that entitlement is predicated upon working a
full eight (8) hours on qualifying days; but
rather, held that there is no minimum number of
hours required. Second Division Award 6893 held
that if compensation for fifteen (15) minutes
were properly paid on the qualifying day, the
holiday pay requirements were fulfilled. See
also, Second Division Awards 2517, 5126 and
6474. No Awards reaching contrary conclusions
have been brought to our attention."
Thus, the key question to be answered in this case is whether the
Claimant performed any compensable service on April 8, 1982. The record
discloses that when the Claimant requested to be relieved, Foreman Gates
sought advice from General Foreman Watson. In granting permission for the
Claimant to be relieved, General Foreman Watson told Foreman Gates that he
"wouldn't pay him (the Claimant), if he didn't work." Foreman Gates stated
that "he has not worked" and General Foreman Watson said, "let him go."
Despite Foreman Gates' statement that the Grievant "has not worked," it is
undisputed that the Claimant was compensated for nine (9) minutes of work on
April 8. Accordingly, the Board has concluded that on the work day immediately preceding Good Friday the Carrier paid the Claimant compensation consistent with the requirement set forth in Rule 33, Section 1 of the Agreement.
In Second Division Award No. 8843, dealing with the same terms of an
Agreement contained in Rule 33, Section 3, the Claimant left work after
fifteen (15) minutes on the workday immediately following veterans' Day, a
recognized holiday under the Agreement. This Board rejected the Carrier's
argument that the Claimant did not perform any ccmpensable service and
concluded that the Carrier had "failed to overcome the prima facie evidence in
the form of the Claimant's time card that he performed 15 minutes work." In
the present case the Claimant's time card for April 8 confirms that he
performed nine (9) minutes of work for which he received compensation. The
Carrier has failed to overcome the prima facie evidence in the form of
Claimant's time card that he performed nine (9) minutes of work.
low
Form 1 Award No. 11103
Page 3 Docket No. 10430
2-SOU-MA-'87
The Carrier seeks support for its position from Second Division Award
No. 9307. In that case, on the workday immediately preceding Christmas, the
Claimant handed his tune card to his Foreman before he took the phone call
fran his wife who indicated to him that she and the children were ill and he
was needed at have. It is "also unrefuted that the Claimant did not perform
any work either on December 23 or December 26." In light of these facts, it
is not surprising that this Board in Award No. 9307 observed that the case
"presents the most extreme situation that could develop under Article 2,
Section 3" which contains the same contractual terms that are at issue in this
case. It is sufficient to state that Second Division Award No. 9307, is
factually distinguishable from the instant case, and is of no assistance to
the Carrier.
A W A R D
Claim sustained.
NATIONAL RAILROAD ALI7USTMENT BOARD
By Order of Second Division
Attest:
Nancy . er - Executive Secretary
Dated at Chicago, Illinois, this 7th day of January 1987.