STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5871) that:
EMPLOYES' STATEMENT OF FACTS: There is in force and effect a collective bargaining agreement by and between the parties effective August 14, 1950, (revised as of January 1, 1963), a copy of which is on file with the Board, and by reference is made a part of this submission. This Agreement was amended by the Mediation Agreement dated November 20, 1964.
The claim was handled on the property, in the usual manner, through the highest designated officer of the Carrier to handle such matters, and the dispute was not resolved.
The claimant was not permitted to work his birthday holiday, even though he was available and willing to do so.
Mr. Paul Grosso, a checker with a work week Monday to Friday and a starting time of 7:00 A. M. to 3:30 P. M., was brought in early on February 15th to fill Mr. O'Donnell's position. A lower-rated employe was used to fill the vacancy created by Mr. Grosso being assigned to fill the check clerk position, and an extra man was used to fill the last vacancy.
Claim was filed by Mr. O'Donnell on February 16, 1965, Employes' Exhibit No. 1. Reply was made by Mr. Jerpe, Agent, who declined the claim on the ground that there was no overtime paid to the employe who filled his position. Employes' Exhibit No. 2.
OPINION OF BOARD: The facts of record reveal that Claimant was a regularly assigned employe whose birthday fell on a work day of his work week. Carrier gave the Claimant the day off with pay, as it was privileged to do but then his position was filled that day by use of another employe who ordinarily did not perform the type of work assigned to the vacant position. The claim is that Claimant should have been used to work his position on his birthday.
As on legal holidays, equally applicable to an employe's birthday, the Carrier is privileged to blank the employe's assignment that day in whole or in part (Award 7136), but when as here, Carrier finds it necessary to fill the employe's position on his birthday, he is entitled to be used. Award 7134.
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