STATEMENT OF CLA131: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Mr. J. M. Johnson, here Claimant, is a regularly assigned Extra Yard Clerk employed by the Carrier at Birmingham, Alabama. Claimant Johnson's Extra Yard Clerk seniority dates from April 5, 1954. On August 29, 1954, Claimant, in the exercise of his seniority, displaced Clerk W. C. Card, rate $14.68 per day, and worked the position so acquired until November 11, 1954. On September 6, 1954, Labor Day, Claimant Johnson worked the position and was compensated at proper rate of time and one-half under the Holiday Rule 32. He also worked the position the day before and the day after Labor Day. Claimant was not compensated, however, at one day pro rata rate under Article II, Sections 1 and 3 of the Chicago Agreement of August 21, 1954.
Claim was duly filed on November 11, 1954, and appealed through the usual channels up to and including the highest officer of the Carrier designated to receive and consider such appeals. Conferences were held on March 29, 1955, and June 21, 1955, the Carrier declining the claim.
Correspondence in connection with the claim is attached hereto and identified as Employes' Exhibits "A" through "H".
POSITION OF EMPLOYES: There is in effect an Agreement between the Parties bearing effective date of October 1, 1938, revised as of June 1, 1952, to include all rules, revisions, certain amendments, interpretations and memoranda agreed to subsequent to October 1, 1938. There is also in effect an Agreement known as the Chicago Agreement of August 21, 1954, amending and supplementing the general Agreement dated October 1, 1938. Copies of these Agreements are on file with your Division and are by reference made
It is evident that the organization is making no distinction between extra yard clerks who are covered by Rule 7 and extra or furloughed clerks (not assigned to the extra board) who are covered by Rule 8, because on October 11, 1955 the organization served notice of its intention to file with the Third Division an ex parts submission covering claim for the holiday allowance for Mrs. Mary Nell Williams, an extra clerk (not assigned to the extra board) covered by Rule 8 of the agreement. Mrs. Williams is not an extra yard clerk. Therefore, the obvious contention of the organization is that Article II -Section 1 of the August 21, 1954 agreement applies to any extra, furloghed, or unassigned employe who fills a temporary vacancy. In these circumstances, the claim of extra yard clerk J. M. Johnson and the claim of extra clerk Williams are identical in principle. As neither of these extra employes is a regularly assigned employe under agreement rules, the claim for the holiday allowance is not valid.
The evidence does not support the allegation that Carrier violated the agreement in refusing to pay claimant the holiday allowance for Labor Day, September 6, 1954. For the reasons stated, the claim is not valid under the rules and should be declined. Carrier respectfully requests that the Board so hold.
All pertinent facts and data used by the Carrier in this case have been made known to the employe representatives.
OPINION OF BOARD: This is a claim for a day's pro rata pay for working on Labor Day, September 6, 1954, a recognized holiday. Claimant held a job on the extra board on a position that had been bulletined in the usual manner.
While this case is one of first impression on this Carrier, the question presented is not new on this Division, and because of the preponderance of awards denying similar claims, it would seem that the question was settled. 8254-20 7 S5
We think the facts in this case are sufficiently similar to those appearing in Award 7432 to require the same disposition. If anything the Organization makes out a stronger case in its submission in that award than it does in the instant case, and it does not attempt to distinguish the facts there from here.
The Organization does not say that the rules, Sections 1 and 3 of Article II of the National Agreement of August 21, 1954, includes employes such as claimant, but rather that "Claimant Johnson was, for all purposes thereunder, a regular assigned employe as contemplated" by said rules.
As the Carrier said in its submission in Award 7432 in part: "If the parties had intended these two sections to entitle an extra employe, such as each of these claimants, to the benefits provided for regularly assigned employes, it could easily have been accomplished by a slight change in the wording."
We conclude that the Carrier did not violate the agreement and that the claim should be denied.
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