Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11153
SECOND DIVISION Docket No. 10972
2-MP-CM-'87
The Second Division consisted of the regular members and in
addition Referee T. :Page Sharp 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 the controlling Agreement, Section 3 Holiday Provisions, when Carman D. L. Lang was
denied payment for service performed on December 27, 1983 when he reported to
work after the starting time of his regular shift and was denied the right to
work the balance of the shift on that date resulting in the loss of pay for
the Christmas Eve and Christmas Day holidays.
2. That accordingly,, the Missouri Pacific Railroad Company be
ordered to compensate Carman l). L. Lang for two and one-half (2 1/2) hours for
December 27, 1983 plus two (21 eight hour days for the Christmas Eve and
Christmas Day holidays.
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 Carrier has a Rule which governs conditions of payment for
holidays. It reads:
"A regularly assigned employe shall qualify for
the holiday pay provided in Section 1 hereof if
compensation paj_d him by the Carrier is credited
to the work days immediately preceding and following
such holidays."
Form 1 Award No. 11153
Page 2 ,. Docket No. 10972
2-MP-CM-'87
Claimant had worked the day of December 23, the day before the
Christmas Eve and Christmas Day holidays. His next assigned day was December
27. On the morning of December 27 he did not feel well and he called the
Master Mechanic to report that he would not be coming in for work. Later in
the day Claimant felt better and arrived for work at about 12:30 P.M. His
shift had started at 7:00 A.M.
The facts are undisputed until this point. The Claimant states that
he was told by the Master Mechanic that he could start work at 1:00 P.M. and
continue until 3:00 P.M., the end of the shift. He states that he assisted
some fellow employes on a welding project.
- The Master Mechanic states that he told Claimant that he would have
to check with higher authority. He told Claimant to step outside to see how
he felt. In a short while he had another Management employe inform Claimant
that higher authority had not approved his working, thus he would not be
permitted to work.
A letter in the record by the General Car Foreman stated that he had
observed Claimant standing outside the office talking to some fellow employes.
He emphatically stated that Claimant performed no work and had no tools with
which to do work.
The Rule is straightforward. If an employe performs any compensated
service on the before and after dates, he is to be paid for the holidays.
Since the compensation is not qualified, the Rule must be read to include any
amount of compensation. Carrier states that Claimant has not been paid, but
this statement is self-serving in that the Carrier has made the decision not
to pay him. The letter stating that the Claimant had done no work is not
helpful. If he was authorized to be "on the clock" whether he had performed
work is not determinative of the holiday pay.
What is important to our decision is the diametrically opposed statements by the Claimant and the Master Mechanic. If the statement of Claimant
is true, he would be entitled to the holiday pay. However, if the statement
of the Master Mechanic is true, Claimant was not authorized and did not do any
compensated service and is entitled to no holiday pay.
An Appellate Board, as this, has only the opportunity to review what
is in the record before us. We have none of the usual aids at our disposal
that make the difficult job of assessing credibility more reliable. We have
not had the opportunity to hear the tenor of witness voices nor to observe
their demeanor when they testify. This Board is unable to make a judgment
about the veracity of the evidence. Many Awards have held that in a situation
whereby the outccme depends on the credibility of opposing statements, this
Board can only find that the party bringing the Claim has not provided us with
enough evidence to resolve the factual issues and, therefore, has not carried
its burden of persuasion. See Second Division Awards: 10764, 9450 and 9094.
We agree with this line of reasoning and find that the Claim cannot be
sustained.
Form 1 Award No. 11153
Page 3 Docket No. 10972
2-MP-CM-'87
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Second Division
Attest:
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois, this 11th day of February 1987.