BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the R^otherhood (GL-6906) that:
EMPLOYES' STATEMENT OF FACTS: llr. C. E. Beard at the time of the violation, was a regularly assigned relief clerk in the office of the Superintendent of Transportation at lfagexstown, Maryland with a Monday-Friday work week. In that capacity lie filled a daily rated position two (2) days, a monthly rated position two (2) days, and one open day where he was compensated at the rate of the position worked, which could have been either monthly or daily rated.
On the property, the claim for August 17, 1968 was identified as Case 11-133 and the clam for February 22, 1969 was identified as Case H-149.
The Employes have attached Exhibits A through D which cover the handling of the claim in Case H-133 from the beginning up to and including the highest designated officer to receive grievances.
Employes' Exhibits E through H cover the handling of the claim in Case H-149 on the property.
The above two (2) gxievanec cases embodying the same issue, have been combined into one claim before your Honorable Board.
CARRIER'S STATEMENT OF FACTS: Mr. C. E. Beard is a regularly assigned relief Clerk in the office of the Superintendent Transportation at Hagerstown, Maryland. Attached as Carrier's Exhibit "A" is a copy of Eulletin No. 28 dated Mary 12, 1968 showing the manner in which the position was advertised. It will be noted that the occupant fills a daily rated position two days a week, a monthly rated position two days, with one open day where h2 is paid at the rate of the position worked. Normally on that day he works ono-half day in the statistical department and ono-half day on car record work and is compensated at a daily rate.
Claim is made for a day's pay for ALtaust 17, 1968 and February 22, 1969, holidays which occurred on a Saturday rest day of the position.
OPINION OF BOARD: Claimant, at the time of the alleged violation, was a regularly assigned Relief Clerk in the office of Superintendent Transportation at Hagerstown, Maryland. Claimant was the occupant of a daily rated position two days a week and was occupant at a monthly rated position two days, with one open day, where he was paid at the rate of the position worked. On this open date, Claimant normally worked one-half flay in the Statistical D:=~partment and one-half day in the Car Record office and was compensated at a ·daily rate. Claim is made in this dispute for a day's pay for two holidays which fell on his rest day, Claimant's birthday on August 17 1968 and Washington's Birthday on February 22, 1969. The Organization relies on the holiday Agreement dated August 21, 1954; August 19, 1960; November 20, 1964 and December 28, 19'67, which allows hourly and daily rated employes 8 hours pay at the pro rata rate for certain enumerated holidays, including employe's birthday and Washington's Bixtl:day. The Organization further contends that since Claimant was a regularly assigned, daily rated employe, he is covered by the August 21, 1954 Agreement, as amended. Carrier contends that the National Agreement dated December 28, 1967, is not applicable to employes who are monthly rated for the reason that the equivalent of 8 hours for each of the holidays was added to the basic rate, and that Claimant works a relief position for both daily and monthly rated employes, which does not fit into either category (monthly and daily rated). Carrier further maintains that, in the absence of specific language, to include employcs who occupy monthly rated positions, this Board is without jurisdiction to provide such language by an award.
It is the opinion of this Board that the Claimant in this instance is qualified for holiday pay both under Sections 1 and 6(e) under the Clerks' National Holiday Agreement of August 21, 1954, as amended by National Agreements of August 19, 1960, November 20, 1964 and December 28, 1967. For this Board to deny this- Claimant his rights under the National Holiday Agreement because part of his tour of duty is performed as a monthly rated employs, would be dealing the employe an injustice. To allow this Claimant the full rights under Section 1 of the Holiday Agreement, even though he performs a substantial portion of his duties as a monthly rated employe, would be dealing au injustice to the Carrier. Therefore, it is the opinion of this Board that the computation of this claim should be prorated in accordance with the time Claimant performs his duties as a monthly rated employe and the time he performs his duties as a daily rated employe. Under the facts disclosed in this case, Claimant perform; his duties as a daily rated employe on 3 of the 5 working days of the week. Therefore, this Claimant is entitled to 3/5th of the holiday pay claimed in this dispute. 3/5th of Shours equals
4.8 hours. This award will be sustained in the amount of 4.8 hours for Claimant's birthday holiday on August 17, 1968 and in the amount of 4.8 hours for Washington's Birthday on February 22, 1969, or the total amount of 9.6 hours.
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, 1931;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
LABOR MEMBER'S DISSENT TO AWARD 18953 (DOCKET CL-19083)
(Referee Ritter)
The Majority in Award 18953 (Docket CL-19083) has adopted an Award sustaining a claim in the total amount of 9.6 hours to compensate Clerk C. E. Beard for his Birthday-Holiday on August 17, 1968, and for Washington's Birthday on February 22, 1969. The Majority, consisting of Referee Gene T. Ritter and Carrier Members R. E. Black (the Mover of the Award), P. C. Carter, C. M. Crawford, G. L. Naylor and W. J. Swartz, .has committed palpable error and has exceeded its authority under the Railway Labor Act, the Rules and Procedures of the Third Division, Circular No, 1 of the National Railroad Adjustment Board, and all well-defined principles of adjudicative grievance arbitration, in adopting an Award for which there is absolutely no foundation in the controlling Agreement -- the Non-Ops Holiday Pay Agreement. Under the clear and precise language of the agreements involved, and the uncontested facts of record, the Claimant involved in Award 18953 is entitled to be paid eight (8) hours' Holiday pay for each of the two (2) Holidays involved. To pay him less is to cheat him out of the benefits of an Agreement negotiated on his behalf. There is no basis in the Holiday Agreement, or the working agreement, upon which an Award can be made that would pay him only three-fifths of a day's pay for each of the Holidays involved.
If this is correct, and the record clearly establishes that the FINDINGS are correct, then this Board has the obligation to sustain the Claim as presented. This it did not do. In view of the serious error committed, careful analysis of the Opinion of Board is required.
From the way the above sentence is constructed, the normal inference drawn is that the open day is the only day that Claimant Beard is paid at the rate of the position worked. The facts of the case are that all five (5) days of Claimant's bulletined relief assignment are paid at the rate of the position worked, and all five (5) days are paid on a daily-rated basis. On the two (2) days per week that ;Claimant Beard relieves the occupant of a monthly-rated position he is paid on a daily-rated basis as provided under the provisions of Rule 47 of the working Agreement. The Carrier stated in their rebuttal submission that:
This sentence alone supports the fact that Claimant Beard is a daily-rated employe on the two (2) clays per week he relieved the occupant of a monthlyrated position. This statement alone, made by the Carrier, is sufficient to require sustaining the claim in full.
With respect to the first part of the sentence, Carrier never contended that the National Holiday Agreement dated December 8, 1967 was inapplicable to monthly-rated employes, but only that Section 1 was inapplicable. Nowhere in Carrier's submission is it stated that the National Holiday Agreement dated December 28, 1967 is not applicable to employes who are monthly-rated.
This sentence illustrates a gross lack of understanding of the construction of the Holiday Pay Agreement. Section 1 contains provisions for quali-
fieati'on for Holiday pay. Section 6(e) doer, not. For instance, the very first phrase of Section 1 provides: "Subject to the qualifying requirements contained in Section 3." Section 1 obviously deals with hourly- and daily-rated employes. Specific' qualifications are set forth for their Holiday pay entitlement. Section 2 deals with monthly-rated employes. Not one word of qualification is contained in Section 2. Section 6 deals with qualifying requirements for the Birthday-Holiday of hourly-, daily- and weekly-rated employes. Section 6(e) deals with monthly-rated employees, but like Section 2, is unqualified. The above-quoted sentence from the OPINION is in error because Section file) does not establish qualifications for Holiday pay for monthlyrated employes. However, the sentence does state that Claimant Beard was qualified for Holiday pay under Section 1. If he was qualified for Holiday pay under Section 1, then he should he paid 8 hours' (not 4.8 hours) holiday pay for the Section 1 Holiday involved- Washington's Birthday, February 22, 1969.
It is true that to deny Holiday pay to Claimant would be dealing him an injustice. The defect, though, is 'the consideration that a part of his tour of duty is performed as a monbly-rated employe. This- is incorrect. A part of Claimant's tour of duty is performed relieving monthly-rated employes for which he is properly paid on a daily-rated basis under the Rules.
The obvious question is: Why would denial of "fall rights" to Claimant do an injustice to the Caei~r? This Board does not establish the value of "full rights" The negotiators of the Agreement have this function; they are the ones that deal in equities. Inasmuch as we found an agreement violation, we must grant "full rights" to the Claimant. It is well established that this Board cannot indulge in establishing equities or imposing its ideas concerning the value of equities in a given agreement.
Were we permitted to deal in equities in the instant dispute the matter would be the same, as the Carrier cannot prove that Claimant received one cent of Holiday pay on the days that he relieved monthly-rated employes. Below, it will be shown mathematically that on the two (2) days per week Claimant relieved monthly-rated employes not one cent of Holiday Agreement Sections 3 or 6(e) compensation adjustments is included in his daily rate.
Section 1 of the amended National Holiday Agre-·ment provides than daily-rated employes shall receive Holiday pay equalling eight (8) hours' pay at pro rata rates for each Holiday specified therein. Section 2 of the amended National Holiday Agreement provides that monthly-rated employes shall have an amount equal to one-twelfth of the annual equivalent of their
total yearly Holiday pay added to their monthly lanes so as to include the equivalent of Holiday pay- within their basic monthly rate. This difference between Section 1 and Section l establishing Holiday pay creates two distinct methods of payment. For instance, if a Holiday occurs on the work day of a daily-rated employe, he is entitled to receive the day off and he is paid eight (8) hours' pro rata Holiday pay for that day. When the Holiday occurs on the work day of a monthly-rated employe, he is entitled to receive the day off, but his monthly rate remains the same inasmuch as Holiday pay has, by the language of the Agreement, been included in his monthly rate. Additionally, when a Holiday occurs on a rest day of a daily-rated employe, lie receives au additional eight (8) hours' pay fore that Holiday. In such workweeks, the daily-rated employe is entitled to receive forty-eight (48) hours' straight time pay. On the other hand, if a Holiday occurs on the rest day of a monthly-rated employe, no additional compensation is allowed irasniucli as sufficient hours representing the annual Holiday pay are, by the language of the Agreement. already reflected in such employe's monthly rate. Here, we are confronted with a cas, where the Carrier argues that the employe is both monthly rated and daily-rated. The Carrier overlooks the fact th;it an employe rTeving a monthly rated employe, one, two, or even five days in a workweek, deli not.. by and of itself, make such an employe a monthly-rated employe wheel the specific rules of the working Agreement clearly provide otherwise. In Either words, yon cannot deem a relief employe to be monthly-rated employe merely because be is relieving a monthly-rated employs, if in the final analysis he is. by the language of the rules agreement, paid on an hourly or daily basis.
In the instant case, one need only look at the schedule agreement to determine how Claimant was normally paid on the two days per week, Tuesdays and Wednesdays, that he relieved a monthly-rated employe. Claimant Beard was paid as a daily-rate;) employe under the provisions of Rule 47 reading:
Under the provisions of Rule 47, to determine B&,,ard's daily rate, the monthly rate of $607.63 is divided by 174 hours to establish the hourly factor of 3.49. This hourly factor of 3.49 is multipled by eight resulting in a daily rate of $27.93. This daily rate does not include any Holiday pay whatsoever. Mathematically, it cannot, because the monthly rate is being divided by the number of hours comprehended in the monthly rate. The number of hours comprehended in the monthly rate includes the number of hours added to the monthly rate by the provisions of the August 21, 1'954 National Agreement to reflect the amount of Holiday pay granted by that Agreement to monthlyrated employes. For instance, by the terms and provisions of the August 21, 1954 National Agreement, the number of hours comprehended in existing monthly-rated 5-day positions were increased from 169% to 174; thus, the inclusion of Holiday pay hours in monthly rates. Therefore, if the dividing factor used to determine what Beard would normally be paid on the two days
per week that he relieved a monthly-ratrl ornploye was 169?;, the result would be different. On each of the days that he worked relieving monthlyrated employes he would be receiving a fraction of his Holiday pay. For instance, dividing Beard's monthly rate by 169'/3 would produce a daily rate of $28.70. The difference between $28.70 and $27.93 is 77e. If the hourly factor used was 169'/,, and I emphasize it was not, it was 174, then each day that Beard Nvorked relieving a monthly-rated position he would be receiving 770 toward his Holiday pay. Ile was not receiving this 770 because the factor used to determine his pay on Tuesdays and Wednesdays was, in accor,lance with Rule 47, 174 hours.
From the foregoing, it is abundantly clear that for pay purposes Claimant Beard was a daily-rated employe on the two (2) days per week he relieved monthly-rated employes, and he did not receive one penny of Holiday pay on either of those two days. Therefore, the claim should have been sustained in full.
The Majority in Award 18953 has clearly exceeded its authority and the Award is palpably in error.