NATIONAL RAILROAD ADJUSTMENT BOARD
Livingston Smith, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
ATLANTIC COAST LINE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
1. The Carrier violated the revised clerks' agreement effective
July 16 1951 and a jointly signed agreement signed at Washington
D. C., December 15, 1954, between the Atlantic Coast Line Railroata
and Cooperating Organizations which contained certain parts of an
agreement signed at Chicago, Ill., August 21, 1954, between participating Eastern, Western and Southeastern Carriers and Employes
represented by the Fifteen Cooperating Railway Labor Organizations
Signatory thereto and more particularly Rules 43, 58 and 60 of the
agreement effective July 16, 1951, and Article 11 of the agreement
signed at Chicago, August 21, 1954, which was approved by the
Atlantic Coast Line Railroad by agreement December 15, 1954, by
refusing to pay a straight time day's pay for the holidays which fell
within the work week (as defined in Rule 58 (c)) of individual employes who are regularly assigned as part of six or seven day
assigned positions.
2. That the Atlantic Coast Line Railroad shall, effective May
1, 1954, and thereafter, pay a straight time day's pay in accordance
with Article II of the August 21, 1954, Chicago agreement for each
holiday outlined in that article to all employes who come under Rule
47 (c) and who are regularly assigned and have relief days which
fall on the actual holiday and whose holiday is moved over to the
next work day as outlined in paragraph (c) of Rule 58. Under Rule
58 (c) of the agreement effective July 16, 1951, an employe regularly
working a six or seven day per week assigned position and having
a relief day falling on a holiday has that holiday moved over to his
next work day, thereby causing the holiday to fall within his work
week and if he qualifies by working on the work day prior and
the work day following his holiday, he is entitled to and should be
paid a straight time day's pay as outlined in Article II of Agreement
dated August 21, 1954, at Chicago, Illinois.
EMPLOYES' STATEMENT OF FACTS:
There exists an agreement
effective July 16, 1951, containing Rule 43 which was placed in the agreement
effective September 1, 1949, and reads as follows:
[367)
7479-52
418
(Exhibits not reproduced)
OPINION OF BOARD:
Claim is here made that the Respondent has
violated the terms of the effective agreement bearing date of July 16, 1951,
as supplemented by an agreement of December 15, 1954, which effectuated
the National Agreement of August 21, 1954 on this property.
Claim is made for reparations for all employes affected account of
Respondent's failure to allow holiday pay at the pro rata rate to all employes
who are otherwise qualified and who are regularly assigned on 6 and 7 day
positions and who have holidays which fall within the regular assigned work
week, and/or when such holiday is moved up to the next work day within
the aleged meaning of Rule 58 (c).
Pertinent rules involved are Rule 58 (b) and (c) and Article II, Section
1, and the Note thereto of the National Agreement of August 21, 1954. The
pertinent parts of the rules involved read as follows:
"Rule 58 (b) Holiday Work. Work performed on the following legal holidays, namely-New Year's Day, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day,
and Christmas (provided when any of the above holidays fall on
Sunday the day observed by the State, Nation or by proclamation
shall be considered the holiday) shall be paid for at the rate of
time and one-half.
(c) When a regularly assigned employe has an assigned relief
day other than Sunday and one of the holidays specified in paragraph
(b) of this rule falls on such relief day, the following work day
will be considered his holiday."
"Article II, Section 1. Effective May 1, 1954, each regularly
assigned hourly and daily rated employe shall receive eight hours'
pay at the pro rata hourly rate of the position to which assigned
for each of the following enumerated holidays when such holiday
falls on a workday of the workweek of the individual employe:
New Year's Day Labor Day
Washington's Birthday Thanksgiving Day
Decoration Day Christmas
Fourth of July
Note:
This rule does not disturb agreements or practices now
in effect under which any other day is substituted or observed in
place of any of the above-enumerated holidays."
In substance the Organization asserts the Rule 58 (c) of the effective
agreement should here prevail and that Section 1 of Article II of the National Agreement does not supersede the prior negotiated provision, to the
effect, and with the result that when a holiday falls on an assigned rest day
of an employe, such employe is entitled to holiday pay for the first regularly
scheduled work day after such rest day.
The Respondent on the other hand asserts that Rule 58 (c) provides
for premium pay for any work performed on holidays without regard to
premium pay provisions of Section 1 Article II of the National Agreement,
which clearly
is limited to those holidays which fall on the work day
of
an employe, and not, as here, for holidays that occur outside of the regularly
scheduled work week (rest ays) of the employe.
We are of the opinion that the same rules and the same issues here in
dispute were before this Board and properly resolved in Award 7433 wherein
it was held:
"We find no ambiguity in the first paragraph of Section 1. In
order for an employe to receive the pay provided therein, one of the
seven listed holidays must fall on a workday of his workweek. It
7479-53
419
is implicit in the claim before us that pay is being sought for employes in cases where one of the seven listed holidays falls on a rest
day rather than a workday of their workweeks. Thus, there is no basis
for the claim in the language of the first paragraph alone. Any
support for the claim must come from the Note. The language of
the Note is less clear and is subject to interpretation. Is the provision
in Rule 47 (c) that when a holiday falls on an employe's rest day,
'the following work day will be considered his holiday' an 'agreement
under which any other day is substituted or observed in place of
one of the listed holidays, within the meaning of the Note? We think
not. Rule 47 provides for precisely the same seven holidays as does
Section 1. No provision is made for substituting or observing any
other day in place of any of these seven holidays. The provision is
that if one of the holidays falls on an employe's rest day, the following work day shall be 'considered' his holiday. It is so considered
for the purpose of providing him time and one-half pay if he works
on that day. 'Considering' the work day as a holiday for that purpose
is not substituting or observing any other day in place of the holiday
in the sense in which we understand that phrase to be used in the
Note.
"A holding that the holiday pay provisions of Section I do
not apply in the circumstances of this case does not, contrary to
Claimant's contention, change Rule 47 (c). Rule 47 (c) intended
that the workday following the rest day be considered as a holiday
for the purposes of that rule; it continues to be considered. Rule
47 in its present form antedates the August 21 1954 Agreement by
five years. Section 1 of the latter Agreement deals with a different
aspect of holiday pay than does Rule 47. It does not follow because
the workday following an employe's rest day is considered his holiday
for the purposes of Rule 47, that the same workday is the holiday
observed under Section 1. On the contrary, both from the language
of Section 1 and its background (See Second Division Awards 2052
and 2169, and Third Division Award 7430, it appears that such an
application would be inconsistent with its purpose. Under the rules
cited in this case, where a holiday falls on an employe's rest day,
his holiday for the purposes of Rule 47 is the first workday after
his rest day; for the purposes of Article II, Section 1 of the National
Agreement, it is the day on which the holiday actually falls."
For the reasons stated above this claim is without merit.
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.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 30th day of November, 1956.