BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS.
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes that the Missouri Pacific Railroad Company violated the provisions of the National Vacation Agreement and of the current Clerks' Agreement, when it:
EMPLOYES' STATEMENT OF FACTS: The 1943 agreed to vacation schedule indicated Mr. Batte would go on vacation August 20 to 31, both dates inclusive. However, his vacation date was advanced by the Carrier and he was required to go on vacation beginning August 18, at which time he was instructed to report back upon his position on September 1, which meant that he was required to be off and away from his position a total of fourteen days in order to obtain a vacation of twelve days, thereby being made worse off by reason of taking his vacation because the position occupied by Mr. Batte has been a seven day assignment for many years and the Carrier had not provided a relief clerk to relieve him one day in seven-
While Mr. Batte was on vacation, his position was filled by Clerk Mr. F. Foryewicz, Inbound Desk Clerk to which position he was regularly assigned. Mr. Foryewicz's position was filled through a rearrangement of the remainder of the force.
The 1943 vacation schedule listed Mr. LaOrange to go on vacation September 1 to September 15, 1943, inasmuch as the time the schedule was compiled and agreed to, Mr. LaOrange was occupying a six day per week assigned position of Check Clerk, which position was not one "necessary to the continuous operation of the Carrier." Therefore, the Sundays of September 5 and 12 would have been properly excluded from the twelve days' vacation to Mr. LaOrange under the provisons of the Vacation Agreement. However, prior to the time for him to depart on his vacation, Mr. LaOrange changed from a Check Clerk position, not "necessary to the continuous operation of the Carrier" to a Yard Clerk position which does come within the category of "necessary to the continuous operation of the Carrier." In the capacity of Check Clerk, assigned six days per week, he would not have been due to work on Labor Day, Monday, September 6.
Mr. LaOrange went on vacation September 1, and was instructed to report back for work at the expiration of twelve days, that is, to report for work on his position on September 13, with which instructions he complied. Mr. LaOrange was paid for twelve days, i.e., September 1 to 12 inclusive of the Sundays of September 5, Monday (holiday), September 6 and Sunday, September 12, at the pro rata rate of his position.
Mr. LaOrange took his vacation as he was instructed to do, and returned from vacation as and when he was instructed to return. He was entitled to twelve days' vacation with pay, including the penalty days, thus being made worse off by reason of his vacation, because
The employes when they negotiated Rule 26 of the working agreement asked to have one day off in each seven. The rule does not provide one day off in seven with pay. They are not entitled to any more than six days work with pay and one day off without pay in each 7-day period and the vacation agreement does not specify that they shall be entitled to any more. The fact that they were required to work their rest days over a considerable period of time was not something that they acquired as a matter of right either by virtue of Rules 26 and 27 of the working agreement or the vacation agreement, but was a state of circumstances engendered by the manpower shortage at that particular time.
The Board's attention is also invited to Exhibit F attached hereto which is a memorandum prepared on December 27, 1943 by Mr. M. C. Coad, at that time Assistant Chief Personnel Officer, now Special Assistant to the President of the Brotherhood of Railway and Steamship Clerks, which memorandum summarizes the results of a conference with the General Chairman on that date.
The proposition submitted by the General Chairman whereby employes, who were on their vacation 14 consecutive days, two of which were their rest days, and where there was no relief man in the pool, would be paid 14 days at the pro rata rate should indicate that the organization was quite uncertain of their position but that underlying their contention was a desire and attempt to stretch the 12-day vacation provided by the agreement into a 14day vacation with pay for 14 days at the pro rata rate.
Exhibit G appended hereto copies of correspondence exchanged between the Chief Personnel Officer and the General Chairman in March 1946 resolving the question of whether or not and under what circumstances the assigned rest day attaches to the position and when it attaches to the individual. You will note that this correspondence does not differentiate between the situation where a relief man is assigned and a situation where only the rest day is assigned and the regular occupant of the position may be working his rest days. Both are treated the same. It will be noted that in the General Chairman's reply he does not take exception to this factor. He treats assigned rest days as being what they in fact are, i.e., "rest days" and not a day on which the employe is entitled to work.
It must be understood that there is no requirement that an employe assigned to a position necessary to the continuous operation of the Carrier be allowed to work on his rest day when the relief assignment is not filled. The Carrier is privileged to relieve him on his rest day by placing an extra or furloughed employe on the job, or by allowing a regularly assigned employe to "move up" on the job.
The claim here presented in behalf of the claimants named, as recited in the Employes' Statement of Claim, is not supported by rules of the Clerks' Agreement or the National Vacation Agreement and, accordingly, should be denied by your Honorable Board.
OPINION OF BOARD: On all dates here in question the two claimants in this dispute held regular assignments to positions necessary to the continuous operation of the Carrier. Each, on paper at least had been regularly assigned to work six days per week, Mondays to Saturdays, inclusive, with Sunday designated as a rest day.
The case requires consideration and construction of the working Agreement between the parties, effective July 1, 1943, as well as the National Vacation Agreement of December 17, 1941, and its Interpretations. To facilitate progress of the Opinion, involved provisions of such instruments will be quoted before relation of further facts or discussion of the issues.
"Effective with the calendar year 1942, an annual vacation of six (6) consecutive work days with pay will be granted to each employe covered by this agreement who renders compensated service on not less than one hundred sixty (160) days during the preceding calendar year."
The local committee of each organization signatory hereto and the representatives of the Carrier will cooperate in assigning vacation dates."
"While the intention of this agreement is that the vacation period will be continuous, the vacation may, at the request of an employe, be given in installments if the management consents thereto:"
Desk Clerk. C. H. Batte, the first claimant herein named, as stated in his claim, was granted and/or required by the Carrier to go on his regular vacation commencing August 18 and terminating August 31, 1943. In that period were two designated rest days, Sunday, August 22, and Sunday, August 29. During the time he was away on his vacation he was compensated for 12 days at the pro rata daily rate and denied compensation for the two Sundays. He claims he should have been paid for those two days at the punitive rate of time and one-half.
Yard Clerk, E. D. LaOrange, the second claimant, was granted and/or required by the Carrier to go on his regular vacation September 1 to 12, 1943 inclusive. Within those dates were two designated rest days of his position Sunday, September 5, and Sunday, September 12. Labor Day, September 6. was also in such period but is not here involved and need not be further considered. Claimant was allowed compensation and paid for the two Sundays at his daily pro rata rate. His claim for pay at the punitive rate for such two days was denied.
The parties agree that both claimants qualified under Articles 1 and 2 (a-1) of the Vacation Agreement and were entitled to vacations of twelve consecutive work days with pay in 1943. They also concede that while they were away on their vacations their positions were filled by two relief employes who worked every day of such vacation periods and who were each paid time and a half for the two Sundays they were each required to work on vacation relief.
It is not disputed that when Rule 26 became effective and for some time after August and September, 1943, when it became apparent the instant claims were to be pressed, no relief employes were employed or assigned to relieve these two claimans on their designated rest days (Sunday) although normally Carriers assign so-called relief positions or employes to work regularly the seventh day on positions necessary to the continuous operation of the Carrier such as are here involved. Neither is it controverted there were no extra or unassigned employes available for relief on the two positions. Nor is It denied that claimants were in fact each required, both before and after their vacation periods, between the effective date of the current working Agreement and some time in September 1943. to work all Sundays, except of course the two of their respective vacation periods, for which tey received the punitive or overtime rate. Indeed the Carrier states they were required to work their rest days prior to and following their vacation while the petitioner charges without refutation that they were required to work each such Sunday and were subject to discipline if they refused to do so.
With specific reference to claimant ]Bette the petitioner's contentions can be summarized as follows:
As to claimant LaOrange, petitioner asserts that he was properly allowed twelve consecutive work days as contemplated by Article 2 (a) supra but that under Article 7 (a) supra, he was entitled to pay at the punitive rate for the two Sundays instead of pro rata as paid. Decision of the principal or monetary phase of this claim raises the same questions, and arguments advanced in support thereof are practically the same, as those in the Batte claim. Therefore, from this point on until specific reference is again made to the LaOrange claim this Opinion will proceed as if the Batte claim only was in controversy.
At the outset it should be pointed out that standing alone there is nothing in Rule 26 which, even by inference, supports the petitioner's theory that Butte was entitled to pay at the punitive rate therein specified for Sundays not worked. So far as employes in general are concerned the rule expressly provides for and contemplates "work performed" on such day and in cases of employes necessary to continuous operation contains the following additional phrase, "if required to work." Thus it clearly appears that such rule has no application unless provisions of the Vacation Agreement bring it into play by requiring pay for Sundays not worked and that even then its application is limited to fixing the rate of payment.
The axis on which decision of all other questions herein involved turns is whether in the situation disclosed by the record Sunday was a regularly assigned work day or a regularly assigned rest day of Batte's position. Once such question is decided the solution of the others becomes comparatively simple.
In the first paragraph of this Opinion the following statement appears, "Each, on paper at least, has been regularly assigned to work six days per week, Mondays to Saturdays, inclusive, with Sunday designated as a rest day." Such statement was purposely made in that form so that the contentions of the respective parties with respect thereto could be stated. For the same reason there has heretofore been set forth a full and complete statement of the prevailing conditions under which Batte worked his position on Sunday both before and after his vacation period.
On the point in question the Carrier asserts that on or about July 1, 1943, in line with Rule 26 of the current Agreement, it prepared a relief schedule designating Sunday as the relief day for the position held by Batte and that thereafter his regular assignment to such position was six work days, Mondays to Saturdays, with Sunday designated as a rest day. It contends that thereafter when required to work on such day Batte was not at work on a regularly assigned work day but working a rest day, or overtime, for which he was entitled to and received compensation at a punitive rate. This contention, it may be added, is entitled to some weight in and of itself by reason of the fact that prior to the date of the new Agreement and under the terms of its predecessor employes could be regularly assigned to a position with seven work days a week, inclusive of Sunday, without any provision being made for a rest day but were entitled to pro rata time only for the seventh day of such assignment whereas the new Agreement not only requires an assigned rest day but provides for a penalty payment when the regular incumbent works it.
The assertion made by the Carrier as to the status of Batte's assignment after the new Agreement went into force and effect is impliedly, if not actually conceded. The effect of petitioner's contention is that even so the Carrier's failure to provide a relief clerk for the position and its requirement that Batte work the position on Sundays under the conditions heretofore related, notwithstanding Rule 26 and its subsequent assignment of a rest day, resulted in an actual designation of Sunday as a work day or at least in its becoming a regularly assigned work day of the position. 4032-18 253
Once Sunday has been designated or regularly assigned as the rest day of a regularly assigned position-as here-we do not believe the fact the Carrier requires the occupant of that position to work it thereafter, occasionally or continuously, results in changing its designated status. It is still a rest day for which, when worked, the punitive rate is collected. The Carrier was not required to designate te claimant as the person to fill the assigned relief position here involved but could have filled it at any time with a proper relief clerk. Indeed, under the facts, if claimant had remained at home he could not have compelled the Carrier to permit him to work the two Sundays in question had he seen fit to attempt to do so.
Under the conditions heretofore related and in the light of all the facts and circumstances disclosed by the record this Division can only hold that Sunday was the regularly designated rest day and not a regularly assigned work day of claimant's position. The fact, as pointed out, that Batts would have been subject to discipline had he not worked as instructed is not significant in determining the status of Sunday. Our understanding is the nature of his position was such that even though there had been no question raised as to the regularity of the designation of Sunday as his rest day, he would nevertheless have been subject to discipline in the event of a call and refusal to serve.
Now that the point common to all others has been determined we turn to alleged violations of the Agreement on which petitioner relies.
We think the claim Article 2 (a-1) of the Vacation Agreement was violated in that in allowing Batte fourteen days vacation with two rest days included he was not allowed "twelve consecutive work days" as therein required is definitely answered by this Division in recent Awards Nos. 3996 and 4003. We reaffirm what is reasonably to be inferred from Award 3996 and what is expressly held in Award 4003 to the effect the phrase just above quoted means twelve consecutive days on which the regularly assigned work of the position is to be performed and that the two Sundays included in Butte's vacation not being regularly assigned work days of his position were properly excluded in fixing the days of his vacation. It follows that in granting him fourteen full days instead of twelve the Carrier did not violate this Article of the Agreement.
What has just been stated disposes of the contention Article 11 of the Vacation Agreement was violated in that he was required to take his vacation in installments. How else could a Sunday which is a rest day and no part of the regularly assigned work days of a position be taken into account in fixing vacations periods in excess of seven--as here twelvedays duration.
The claim that Article 7 (a) of the Vacation Agreement and its Interpretation were violated because claimant was denied payment for the two Sundays, August 22 and 29, at the punitive rate, which was the rate paid for those days to the person occupying such position on relief, cannot be upheld for two reasons. In the first place Article 7 (a) contemplates payment shall be made to the holder of the regular assignment on the basis of the daily compensation paid by the Carrier for "such" assignment. The word "such" in our opinion limits payment to regularly assigned work days. That was done. In the next place, the Interpretation expressly excepts payment of unassigned overtime. Under Award 1401 Sunday work performed on a punitive rate is regarded as overtime. The two Sundays for which the relief occupant received payment at the punitive rate were unassigned overtime so far as claimant is concerned. He did not work them. Neither did he have any assignment to work them.
We have not overlooked claimant's contention that the Interpretation states he is to be no worse off than if he had remained at work. In our opinion such Interpretation must be construed in the light of the limiting phrases to be found therein, namely "on such assignment" and "or unassigned overtime." When so construed the language on which claimant relies 4032-19 254
comprehends compensation paid by the Carrier for the regularly assigned work days of the claimant's position.
Based on our conclusions as to other issues petitioner's contention respecting violation of the Seniority Rules of the working Agreement falls of its own weight.
Turning again to the LaOrange claim, what has heretofore been held requires the denial of his claim for pay at the punitive rate. It discloses, however, the Carrier improperly included two Sundays in his vacation period and that he was actually entitled to two more days vacation on pro rata pay. The claim involves the amount due him for his vacation period and is therefore broad enough to permit of its disposition on an equitable basis. By the Carrier's action LaOrange lost two days of his vacation period which cannot be adjusted. We therefore hold he is entitled to two days pro rata additional vacation pay. The fact the Carrier may have voluntarily paid this claimant for two Sundays as a result of its erroneous construction of the Agreement does not relieve it from its obligation to pay for the two vacation days denied him.
Other contentions advanced by the parties have been considered and rejected without recital or comment as not being of sufficient importance to change the result here announced. To discuss them would only prolong what is already a too lengthy Opinion, due in the main to the detailed preparation, excellent presentation and spirited argument of the cause.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Agreement was not violated except in the one particular outlined in the next to last paragraph of the Opinion.
Claim 2 (a) (b) sustained in part, denied in part. Claimant is allowed two days pro rata pay as indicated, and on the basis set forth, in the Opinion.