NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-20089
Joseph A.' Sickles, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Pacific Lines)
STATEMENT OF CLABi: Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the Southern Pacific Transportation Company that:
(a) The Southern Pacific Transportation Company violated the
mediation Agreement Case No, A-8433, dated April 21, 1969, by refusing to
compensate Mr, J. L, Wiltse eight (8) hours Holiday allowance (Birthday)
when his birthday occurred during assigned Vacation period,
(b) Mr; J., L. Wiltse be allowed eight (8) hours additional compensation for his Birthday Holida
day of his vacation.
LCarrier's File: SIG 162-32/
OPINION OF BOARD: Claimant was a regularly assigned employee. On July
24, 1971, the United Transportation Union commenced
a strike against Carrier and posted picket lines, As a result, Carrier's
operations were suspended and Claimant was notified that his position pas
abolished effective with the commencement of the strike, and for the duration thereof,
The strike was settled on August 3, 1971, Claimant started his
assigned vacation on Monday, August 2, 1971 and was compensated at the
rate of his regular position during the vacation period, which extended
through August 20, 1971, Claimant returned to work and received compensation on Monday, August 23, 1
following the vacation period.
Claimant's birthday fell on August 20, 1971, however the Carrier
refused to pay him an additional eight hours' pay for that day.
The Agreement specifies that when a birthday holiday falls during
a vacation period, a regularly assigned employee shall receive holiday pay,
provided he meets the qualification requirements as specified, Included among
those qualification requirements, is the necessity to be compensated by the
Carrier on the work days ismediately preceding and following the vacation
period, or if the employee is not assigned to work, that he be available for
service on such days; Claimant asserts that he worked and received compensation for July 23, 1971 is
I
Award Number 20427 Page 2
Docket Number SG-20089
the vacation) but Carrier bases its refusal to compensate because he did
not work on July 30, 1971 which Carrier maintains is the crucial day.
Carrier asserts that the Claimant was neither a "regularly
assigned employee" or a "other than regularly assigned employee" but, in
point of fact, was a "suspended employee." Further, the carrier asserts
that even if it could be considered that Claimant is "other than regularly
assigned," he did not meet the qualifying requirements:
"(3) if on the workday preceding and the workday following the employee's birthday he satisfied
of the following conditions:
(i) Compensation for service paid by the
Carrier is credited; or
(ii) Such employee is available for service.
Note: 'Available' as used in subsection (ii) above
is interpreted by the parties to mean that an employee
is available unless he lays off of his own accord or
does not respond to a call, pursuant to the rules of the
applicable agreement, for service."
Carrier raised the same basic contentions in a dispute with another Organization which this Boar
Award No. 20269 considered the same strike, and the same dispute as to
which day should be considered the Claimant's "workday" during the period
of the strike. The Board noted:
"Similarly, there is no.basis for concluding that Claimants
had a 'suspended' status because they held 'quasi-regular
assignment' status during the strike. The meaning of those
terms is somewhat elusive; however, to the extent we understand their meaning, we believe that they
subsumed in the phrase 'other than regularly assigned' insofar as this dispute is concerned. Awards
14515."
We feel that the ultimate issue presented to us in this dispute
is whether the Claimant is considered as 'not available" and the presumption that Union men will not
failure to work.
This Board has concluded, on prior occasions, that there is a
"presumption" that Union members will not usually cross a picket line. See,
for example, Award No. 19836. While we do not dilute the presumption stated
Award Number 20427 Page 3
Docket Number SG-20089
by this and other Divisions to that effect, we concur with Award No.
20269 that those decisions do not dispose of the dispute. Item 3 of
Section 6(d), cited above, states that the term "available" as used
therein means that an employee is available unless he lays off of his
own accord or does not respond to a call. Clearly, those circumstances
did not apply to Claimant herein.
There may be a requirement that a Claimant show affirmative
evidence to demonstrate that he would have crossed a picket line when he
submits a claim for work performed by improper personnel behind a picket
'i, ' line. But the record here is clear that the position was abolished so that
there was no work to be performed behind the picket line. It is unrealis
tic to require a Claimant to show that he would have crossed a picket line
to perform non-existent work. See Award No. 20269.
Under the facts and circumstances of this record, we believe that
I the claim should be sustained.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
i,
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
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
·cecutive Secretary
Dated at Chicago, Illinois, this 27th day of September 1974.
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