THIRD DIVISION
(Supplemental)
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
EMPLOYES' STATEMENT OF FACTS: The Claimant was regularly assigned to the hourly-rated position of section laborer at Carterville, Montana, with a work week of Monday through Friday. At least 96 hour's prior to August 12, 1960, the claimant was notified that his position would be abolished effective with the close of work on Friday, August 12, 1960, and he promptly gave notice of his desire and intention to displace a junior section laborer at Ryegate immediately upon the abolishment of his position at Carterville.
However, prior to exercising physical displacement at Ryegate the claimant was instructed by the Roadmaster to relieve the foreman on the Carterville section during the latter's vacation which would begin on Monday, August 15, 1960 and which would end on Friday, September 2, 1960.
Upon completion of said relief assignment, the claimant assumed his regular position as section laborer at Ryegate, Montana. Thus, the Claimant's continuity of service as a section laborer was broken only by the Carrier's assignment of him to relieve a vacationing foreman from Monday, August 15, 1960 to and including Friday, September 2, 1960.
Inasmuch as the claimant received compensation from the Carrier which was credited to the work days preceding and following the Labor Day Holiday, Mr. R. Lehfeldt, Section Foreman at Ryegate, Montana, reported eight (8)
Therefore, during the period August 15 through September 2, 1960 Claimant Deitchler's status was that of an unassigned employe performing work of a temporary nature on the monthly rated section foreman position at Carterville.
Effective September 6, 1960, Claimant Deitchler commenced filling an hourly rated section laborer position at Ryegate, Montana as the regularly assigned occupant thereof.
Therefore, as of the holiday, September 5, 1960, Claimant Deitchler was an other than regularly assigned employe for vacation pay purposes and as such did not, for reasons that will be fully explained in "Carrier's Position," qualify for nor is he entitled to holiday pay for September 5, 1960.
There is attached as Carrier's Exhibit A copy of letter written by Mr. S. W. Amour, Assistant to Vice President, to Mr. J. G. James, General Chairman, under date of March 9, 1961 and as Carrier's Exhibit B copy of letter written by Mr. Amour to Mr. James under date of March 27, 1961.
OPINION OF BOARD: Until August 12, 1960, Claimant held a regular position as an hourly rated section laborer at Carterville; on being notified that the position was to be abolished on that date, he gave notice of his intention to displace a junior section laborer at Ryegate. However, before he started actual work at Ryegate, Carrier assigned him to relieve the foreman on the Cartervile section during the latter's vacation. Claimant's last work day on that assignment was Friday, September 2. Monday, September 5 was the Labor Day Holiday. Claimant did not work that day. On September 6, Claimant began actually to work on his Ryegate section laborer position.
On his payroll report for the first half of September, the section foreman at Ryegate reported that eight hours of holiday pay had accrued to Claimant for the 1960 Labor Day Holiday. On October 18, 1960, Claimant received his pay check for the first half of September and found it to be $17.36 short of his expectation. He reported the "shortage" to his foreman, who, in turn, asked for an explanation of the Accounting Department. On November 25 the foreman received and turned over the Claimant a reply from Carrier's Chief Disbursement Accountant, dated November 16, which said that Labor Day Holiday pay had been disallowed for Claimant because he had "worked as a Section Foreman on a monthly rated position the day preceeding the Holiday." On December 5, 1960, Employes' presented a formal claim to bandmaster Natzel, who is designated to receive claims in the first instance.
In addition to arguing on the merits that Claimant was not eligible for the disputed holiday pay, Carrier argues that the claim is barred because it was not presented to Roadmaster Natzel within 60 days from the date of the occurrence on which it is based, as required by Section 1(a) of Article V of the August 21, 1954 agreement between the parties. 'The pertinent portion of Article V, Section 1(a) reads:
'Carrier argues that the occurrence on which the claim is based took place on September 5, 1960. We do not agree. On September 5 the Labor Day Holiday fell and on that day Claimant was not required to work. The Claim neither complains of nor is it based on either of these occurrences. The Claim is that Carrier did not pay Claimant for (not on) the Labor Day Holiday. It was on October 18 that Carrier paid Claimant for the period which included the holiday, and paid him an amount less than he thought he was entitled to; that date is when, as stated in the Claim before us, Carrier "failed and refused to allow Section Laborer D. L. Deitchler eight (8) hours' straight time pay for September 5, 1960.", and that is the occurrence on which the claim is based. Claim filed on December 5 was well within the 60 day time limit of Article V, Section 1(a).
On the merits, we see no reason to depart from the approach we took in our Award 11551 involving a similar issue; there we said:
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