Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11198
S3COND DIVISION Docket No. 10948
2-MP-EW-`87
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Article III, Section 3 of the National Agreement effective July I, 1960, which did amend the
June 1, 1960 controlling agreement, when they denied Electrician J. C. Bussard
his contractual rights under t'1e agreement to receive proper compensation for
the Holiday, September 5, 1983, at Kansas City, Missouri.
2. That, accordingly, Carrier be ordered to compensate Electrician, J. C.
Bussard eight (8) hours at the straight time rate of pay in effect for September 5, 1983.
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.
Claimant, an Electrician on the third shift, 11:00 P.M. to 7:00 A.M.,
was regularly assigned a workweek of Saturday through Wednesday with rest days
Thursday and Friday.
Claimant laid off Saturday, September 3; properly requested and was
granted a personal leave day on Sunday, September 4; did not work on the Labor
Day holiday Monday, September 5; and worked his regular assignment Tuesday,
September 6, 1983.
At issue-here is whether or not Claimant is entitled to compensation
for holiday pay when he elected to take a personal leave day on the workday
Form 1 Award No. 11198
Page 2 Docket No. 10948
2-MP-EW-'87
preceding a holiday. Timeliness is not an issue. nor is it disputed that
Claimant was entitled to personal leave day privileges or that he worked on
the first day immediately following the holiday.
Article III, Section 3 of the National Agreement states in pertinent
part:
"A regularly assigned employee shall qualify for the holiday pay provided in Section 1 hereof if compensation is
credited to the workdays immediately preceding and following such holiday or if the employe 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 employe's
workweek, the first workday 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."
Carrier contends that a personal leave day by definition is not a
workday; that a workday means a workday-not a compensable day before a holiday. Therefore, Carrier contends Claimant does not qualify because he did not
actually work the regularly scheduled workday prior to the Labor Day holiday,
i.e., Saturday, September 3.
In support of its position, Carrier asserts the Organization was a
party to discussions and an accord reached between the National Carriers and -
almost all nonoperating Organizations in Washington, D.C. on March 10, 1982,
concerning application of personal leave provisions in relation to holiday
qualifications.
In situations where personal leave days are taken either immediately
preceding or following a holiday, Carrier asserts the parties agreed to consider the qualifying day for holiday purposes to be the work day immediately
preceding or following the personal leave day.
As evidence thereof, Carrier submitted questions and answers relative
to Application of Bereavement Leave provisions contained in the 1978 National
Agreement, asserting the Application of the Bereavement Leave provision is
consistent with personal leave provisions.
The Organization contends there are no provisions in the Agreement
expressly excluding personal leave days as being a technical workday for the
purpose of qualifying for holiday pay.
Further, the Organization denies that it attended a meeting in Washington, D.C. referred to by Carrier, or that it was a party to or in Agreement
with any Interpretation or instructions arising out of said meeting.
Form 1 Award No. 11198
Page 3 Docket No. 10948
2-MP-EW-'87
Both parties cite Awards from this Board that pertain to their posi
tions.
After a careful review of the record, the Board notes there is no re-
cord that the Organization met with Carrier. In asserting that an Agreement
was reached as an outcome of a meeting to treat personal leave in the same man
ner as the Application of Bereavement leave days, the burden is on Carrier to
substantiate its affirmative defense with some probative evidence.
Since no proof was submitted, the Board rejects Carrier's contention
that a personal leave day preceding; or following a holiday should not be considered as the qualifying day for compensation purposes.
It is clear that Claimant was credited compensation for the workdays
immediately preceding and following; the holiday. The fact pattern is consistent with Second Division Award lOC)33, wherein the Board held as follows:
"We of course, cannot know what the parties who made
the agreement had in mind at the time the holiday Agreement was negotiated, but we cannot see any other
meaning to the the words 'work day' except a day that
such employe would normalcy work on. The Agreement
also makes it clear that r_he employe need not necessarily work the day, but only that he receive compensation for it. A personal leave day would therefore,
be a work day and because this employe did receive
compensation for it, he i:; entitled to the holiday'
pay..
Accordingly, and for the foregoing reasons, the Claim is sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Yoe
Nancy
~r
- Executive Secretary
Dated at Chicago/, Illinois this 41:h day of March 1987.
-400
1400
CARRIER MEMBERS' DISSENT
TO
AWARD 11198, DOCKET 10948
Referee StallworthT-
The doctrine of stare decisis is centuries old and undoubtedly is
entitled to great respect and adherence. The doctrine, however, is two
sided. On one side is the recognition that orderly decisional process
requires that once a principle has been decided by a competent tribunal the
principle be followed in future cases. On the other side, and of equal
importance to the continued effectiveness of the doctrine, it likewise has
been recognized from the earliest days of the doctrine, that stare d ecisis
is not the equivalent of res judicata and tribunals are not required to
follow blindly a prior decision which is palpably erroneous.
We believe the latter side of the coin was ignored in this case. In
essence, the Majority found itself bound to follow Second Division Award
10033, and placed the Carrier in the position of having to establish as an
"affirmative defense" the existence of additional factors present in this
dispute which were not present in Award 10033. The fact that there was not
support for Award 10033 in the provisions of the National Personal Leave
Agreement, the National Holiday Agreement, or in common sense, was given no
consideration. The Dissent to Award 10033, incorporated herein,
demonstrated the egregious error of the Majority's decision in that case.
The issue surrounding the meeting in Washington, D.C. is the only
matter considered at any length by the Majority notwithstanding that it
represented only a peripheral and incidental point made by the Carrier.
Indeed, the Majority does not even mention the Carrier's argument that its
position is supported not only by the undisputed application of the National
Bereavement Leave Agreement but, also, by the Board's Awards interpreting
CMs' Dissent to Award 11198
Page 2
the provisions of the National Vacation Agreement. In both areas, it is now
well settled that neither pay for bereavement leave or a vacation day is
considered "compensation" for a "workday" under the Holiday Agreement.
We are confident that the "rationale" underlying Award 10033 eventually
will be given close scrutiny and will receive the "finality" it truly
deserves.
We dissent.
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