-4waaa Award No. 14921
 Docket No. CL-15793

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES




STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5853) that:


1. The Carrier violated the understanding and provisions of the Clerks' Agreements, particularly, the National Mediation Agreement of November 20, 1964, Article II-Holidays, Rules 4-A-3, 9-A-1 and 9-A-2 among others, when it failed and refused to pay Clerk W. Leigh Jr., at the rate of time and one half for eight (8) hours for having worked his Birthday January 1, 1965 and instead only paid him time and one half for working the holiday (New Year's Day) January 1, 1965.



EMPLOYES' STATEMENT OF FACTS: There is in effect Rules Agreements effective July 1, 1945 and a newly revised Agreement effective January 1, 1965, and National Holiday Agreements signed at Chicago, Ill., on August 21, 1954 and November 20, 1964, covering clerical, other office, station and storehouse employes between this Carrier and this Brotherhood. The Rules Agreements may be considered a part of this Statement of Facts. Various Rules and Memorandums therefore may be referred to from time to time without quoting in full.


This dispute involves the question of whether or not the Carrier complied with the meaning and intent of the Rules Agreement and the Birthday Holiday Agreement dated November 20, 1964, when it failed and refused to compensate Clerk Leigh Jr. at the rate of time and one half for eight (8) hours on account of working his Birthday-Holiday (January 1, 1965) in accordance with the Agreement and instead only paid him for working the New Year's Day Holiday also on January 1, 1965.

The claim was denied by the Manager of Stations on February 25, 1965. The Local Chairman and the Manager of Stations were unable to agree on a Joint Statement of Agreed-Upon Facts and, in accordance with the provisions of Memorandum of Understanding No. 4, they submitted their ex parts statements to the General Chairman and the Director of Personnel. Copies of these statements are attached hereto and made a part hereof, marked Carrier's Exhibit B-1 and Carrier's Exhibit B-2.


On March 22, 1965, the claim was discussed at conference between the Director of Personnel and the General Chairman. The claim was denied by the Director of Personnel on March 31, 1965. A copy of this decision is attached hereto and made a part hereof, marked Carrier's Exhibit C.


On November 2, 1965, the Secretary of the Third Division of the National Railroad Adjustment Board notified the Director of Personnel that he had received written notice of intention to file ex parte submission from Mr. C. L. Dennis, Grand President of the Brotherhood in this dispute. A copy of this letter is attached hereto and made a part hereof, marked Carrier's Exhibit D.




OPINION OF BOARD: Claimant, through the Organization, alleges that Carrier violated the Agreement by failing and refusing to pay him at the rate of time and one-half for 8 hours for having worked his birthday January 1, 1965 and also the rate of time and one-half for working January 1, 1965 account holiday.


The facts are not in dispute. Claimant was required to work on January 1, 1965 (New Year's Day), which is a holiday under the terms of the Agreement. January 1 also happened to be Claimant's birthday. Under the terms of the Agreement, a birthday is considered a holiday. For the work performed on January 1, 1965, Claimant, occupant of a monthly rated position, was paid for 8 hours at the rate of time and one-half.


In addition to being paid for the holiday, the Organization contends that "Claimant is entitled to an additional eight (8) hours' pay at the punitive rate account working on his birthday . . '" It asserts that there are two separate and distinct rules which govern (one rule for legal-holidays and another rule for birthday-holidays) and Claimant is entitled to recover separate payments under each, citing numerous awards by this Board upholding its assertion. (Award 10541 and others.)


Carrier's position, briefly summarized, is as follows: (1) Claimant, occupying a monthly rated position, received (by reason of adjustments under the August 21, 1954 and November 20, 1964 Agreements) two 8 hour pro rata payments for holiday and birthday, as well as 8 hours at time and one-half for working the holiday. (2) The Agreement makes specific provision for birthdays falling on holidays, and in such instances the employe may exercise his option, after reasonable notice to Carrier, to celebrate his birthday on another day. Claimant failed to exercise the option. (3) There is nothing in the Agreement which calls for separate payments when an employe works on a day which happens to be his birthday and a legal holiday as well.






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Article II, Section 6 of the National Agreement dated November 20, 1964 provides, in part:





Under the terms of the November 20, 1964 Agreement, the claim cannot be sustained. It is clear that the parties signatory to that Agreement anticipated such situations, and made provision for their resolution in clear and unambiguous terms. If an employe's birthday falls on one of the seven holidays, he may, after reasonable notice, elect to celebrate his birthday on another day as set forth in Paragraph (f) of the National Agreement. If subsequently he is called upon to work the day which he has chosen to celebrate his birthday, he is entitled, under the terms of Paragraph (g) of the National Agreement, to payment at the premium rate. Paragraph (g) does not entitle him to more.


The long list of awards cited by the Organization as authority for its position are clearly distinguishable. For the purposes of this award, it is sufficient to say that the claims in each of those awards arose prior to the November 20, 1964 National Agreement.


FINDINGS: The Third Division of the Adjustment Board, 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




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 AWARD Claim denied.



Dated at Chicago, Illinois, this 4th day of November 1966.

LABOR MEMBER'S DISSENT TO AWARD 14921,

DOCKET CL-15793


The Emergency Board Report which led to negotiating the November 20, 1964 Agreement, wherein the employe's Birthday was to be considered a holiday, reads in part:

"The Board concludes that more than 7 paid holidays is now or will soon become the prevailing industry practice; however, it is not able to conclude that the prevailing practice will rise to 9 holidays within the span of the agreement to be negotiated by the parties. One additional paid holiday, making a total of 8, should place non-operating employes at no disadvantage with respect to employes in industry generally over the next several years. The Board recommends that the parties agree to one additional paid holiday, effective January 1, 1965; it leaves to the parties the determination of which holiday that shall be."


Thereafter the Agreement of November 20, 1964 was entered into and, with respect to the "holiday," Section 6 thereof reads in part:





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Thus there is no doubt but that, as stipulated in paragraph (g) of Section 6, the payment for work performed on holidays applies to work performed on an employe's birthday.


The Organization's position in the case covered by Award 14921 is that the Claimant was entitled to payment under the circumstances therein as follows:























As support for the claim on the basic proposition, i.e., that where payment for service performed is covered by separate and distinct rules the employe is entitled to comepnsation pursuant to the terms of those separate rules, the Awards of this Board which previously considered that proposition were urged as precedent. Those Awards and comments thereon are:


In ORT v. New York Central Railroad-Southern District-Award 10541 (Sheridan) adopted April 25, 1962 involved 2 Claimants: Each had been required to perform service on Labor Day, September 3, 1956 which was also their rest day. They were paid eight hours at time and one-half under Article 22 reading in part:








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 and claimed an additional eight hours at time and one-half under Article 23 reading in part:


Carrier defended on the ground that Article 7 prohibited such claims, i.e., "There shall be no overtime on overtime." That there had been no similar claims progressed; that none of the organizations party to the 40-Hour Week Agreement had taken such a position etc.

" * * * The Employes are not seeking overtime on overtime. They are seeking compensation pursuant to the provision of Article 22 which provides for overtime on their rest day, and for overtime which is provided by the terms of Article 23 i.e. worked [sic] performed on a holiday.




The Carrier Members dissented thereto and declared the Award to be palpably in error.

 On July 18, 1962 Award 10679 (Moore) involving the ORT and The Indianapolis Union Railway Company was adopted. In that case Claimant performed work on Decoration Day, May 30, 1956, and he was paid eight hours at time and one-half under the provisions of Rule 11, Section 1, paragraph (m) reading in part:

 "(m) - Service on Rest Days.


He claimed an additional payment of eight hours at time and one-half under Rule 11, Section 2., reading in part:


and the Referee, after disposing of some alleged procedural arguments, held in part as follows:

"Petitioner cites award 10541, Sheridan which is on all fours with the instant case.


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Carrier Members' dissented thereto incorporating the dissent to Award 19541 declaring that Award to be in palpable error.


On May 27, 1963 Award 11454 (Miller) involving the ORT and the Lehigh Valley Railroad Company was adopted. In that case rules similar to those in prior Awards 10541 and 10679 were involved and Carrier there defended on the basis that:








Again the Carrier Members' dissented citing their dissent to Award 10541 and the Labor Member replied.


On November 20, 1963 Award 11899 (Hall) involving the ORT and The New York, Chicago and St. Louis Railroad Company was adopted. In that case Claimant had, as had the ones in the earlier cases, worked on his rest day which was also a holiday and was paid only one day at the rate of time and one-half under the "Service on Rest Day" rule and claimed an additional day at time and one-half under the "Service on Holidays" rule. Carrier defended on the ground such payment as claimed would be the equivalent of "overtime on overtime" which was barred by the Agreement. The Opinion of Board reads in part that:





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Again the Carrier Members' dissented incorporating their dissent to Award 10541 and declaring Award 11899 palpably erroneous.

 On April 23, 1964 Award 12453 (Sempliner) involving the ORT and the Chicago, Rock Island and Pacific Railroad Company was adopted. The issues and arguments were essentially the same as in the previous Awards but an additional payment account "relief service" was also claimed and denied. The Opinion reads in part as follows:




On April 30, 1964 Award 12471 (Kane) involving the ORT and the Rock Island was adopted. The issues and arguments are summarized in the Opinion of Board reading as follows:


The contention of the Carrier was that under Rule 13, and 16, the overtime Rules the Claimant is entitled to one penalty payment not both. Furthermore, Rule 13, expressly provides that there shall be no overtime on overtime. Thus as the Claimant received compensation at the overtime rate of time and one-half for service on his rest day no further compensation need be paid.



and again the Carrier Members' dissented adopting their dissent to Award 10541.

 On February 8, 1966 Award 14138 (Rohman) involving the ORT and the Florida East Coast Railway was adopted. The issues and arguments are set out in the opinion which reads in part as follows:

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On March 11, 1966 Award 14240 (Perelson) involving a similar case between the Brotherhood of Railway Clerks and the Grand Trunk Western Railroad was adopted. That case involved essentially the same issues but the Referee there found the rules distinguishable in that there was but one rule stipulating payment for work performed on both "rest days and holidays" and denied the claim.


On June 2, 1966 Award 14489 (wolf) involving the Brotherhood of Railway Clerks and The Western Pacific Railroad was adopted and the Opinion sets out the issues and the pertinency of Award 14240 and reads in part as follows:




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The principle of stare decisis is a most commendable one. It puts an end to controversy where a provision of an Agreement permits more than one interpretation and ends the parade of disputes seeking to upset the established view. In following stare decisis we do not say that we would necessarily have held the same way if we were presented the issue as a matter of first impression. We merely hold that unless the precedent view is palpably wrong we must not upset it. Award 12240.


In our case the problem is compounded by two conflicting sets. of precedents. One is a well-established series of seven cases by seven distinguished referees. The other is a single case which holds differently because of variations in the agreements which otherwise are essentially the same. Unless similar variations in the agreement can be found in our case, the principle of stare decisis compels us to follow the older, established precedents.


In Award 14240, two essential differences were noted: The Clerks' Agreement did not contain a clause like Rule 7-Section 1 of the Telegraphers' Agreement, and the Clerks' Agreement had a 'Notified or Called' Rule which provided:







A careful examination of the seven telegrapher awards discloses that Rule 7-Section 1 was never considered by the Board in the telegrapher cases. Those decisions rested on the obligation of Carrier to pay for service under two separate rules.


In Award 14240, while we found that the Clerks' Agreement did not contain similar language, the main thrust of the Opinion was based upon the language of Rule 44, particularly the juxtaposition of the phrases 'assigned rest day' and 'specified holidays' combined by the conjunction 'and.'


In the instant case Rule 21 is the equivalent of Rule 44. In Rule 21 there is no reference to work on 'assigned rest day' in conjunction with a holiday. Thus, what was deemed a significant difference in Award 14240 is not present in our case.


Since the agreement before us does not have the distinguishing feature of the agreement in Award 14240, we must follow the estab-


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On June 17, 1966 Award 14528 (Perelson) the author of Award 14240, in a dispute involving the Brotherhood of Railway Clerks and the Denver and Rio Grande Western Railroad. There separate rules were involved and the Opinion of Board reads in part as follows:











Such Awards were considered by the Referee to be inapplicable because the claims therein arose prior to adoption of the Noevmber 20, 1964 National Agreement involved in the instant case.

 However, rather than "weakening" the effect of such precedent Awards, such precedents should have strengthened the claim herein. To find otherwise seems to run counter to that said in Award 10239 (Gray):

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 s out in unmistakable clarity. It is not a question as to whether we
 agree or disagree with the language.
 This Board cannot rewrite or attempt to revise an Agreement
 entered into in good faith and with full knowledge of its full impact"
 for in view of the precedent Awards cited above, it surely is wrong to con
 clude that the parties did not know that, unless specifically spelled out, the
 position taken in those prior Awards would also be taken with respect to
 the November 20 1964 Agreement. Both parties were aware of such prece
 dent Awards but did not treat with them in the Agreement of November 20,
 1964.
 Carriers, in general, were well aware of such precedents and, in the cur
 rent (1966) negotiations, propose a prohibition against multiple time and
 one-half payments on holidays, such as:
 "Under no circumstances will an employe be allowed more than
 one-time and one-half payment for service performed by him on any
 day which is a holiday."






                          11-30-66


Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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