C:\MYDOCU~1\SCHEDU~2\3-21116.htm

CORRECTED

NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 21116

THIRD DIVISION Docket Number CL-20642

William M. Edgett, Referee

(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Soo Line Railroad Company

$TATBMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7499) that:

1. Carrier violated the agreement when it failed and refused to properly compensate telegrapher, Mr. R. F. Johnson, for vacation allowance during his vacation period, September 3, 1972 through September 30, 1972. 2. Carrier shall compensate Telegrapher Johnson in addition to other compensation for this period received and claimed, eight (8) hours punitive pay for the Labor Day Holiday, September 4, 1972, which was a regular work day of his work week and which was scheduled to and did work. OPINION OF BOARD: This claim requires the Board, once more, to review the meaning of the words "casual pr unassigned" as they are used in Article 7(a) of the National Vacation Agreement. Ar ticle 7(a) reads as follows:

"7. Allowances for each day for which an employe is entitled to a vacation with pay will be calculated on the following basis:

(a) An employs having a regular assignment will be paid while on vacation the daily compensation paid by the Carrier for such asaigomeat."

And the INTERPRETATIONS dated June 10, 1942 stated:

"Article 7 (a) provides:

'An employee having a regular assignment will be paid while on vacation the daily compensation paid by the Carrier for such assignment.'

This contemplates that an employee having a regular assignment will not be any better or worse o se to the daily compensation paid by the Carrier than if he had rained at work on such assignment, this not to include casual or unassigned overtime or amounts received from others than the employing Carrier."

Award Number --?'-5 Page 2

Docket n=ber CL-2o642 The Labor Day holiday, September 4, 1972, fell during the period of Claimant's vacation. A relief employe worked his assignment on that date. The claim is for an additional 8 hours at time and one-half for Labor Day. 7n their handling on the property the parties narrowed their differences, as expressed in correspondence in the record, as follows: " . , our di-ferences are reduced to just one thing and that is whether ir_ the interpretation of the meaning of the word casual that the positions must have always been filled on all holidays in the history of the assignment or that since carrier informs the incumbent of the positions to report for work (assigns) on almost all of the Holidays, it removes it from the realm of casual into the realm of regular." The parties recognized that the Hoard in disposing of this claim would have to determine whether claimant works holidays in "a regular fashion or casual fashion." The employee have raised issues before the Hoard which were not raised on the property. The Board will limit its consideration to the issue which the parties had joined when they progressed the case on the propert recognized that the key to the case was the casual vs regular overtime question. Carrier dealt with that question in a letter of September 26, 1973 in which it said, in part: " . . . of the sixteen holidays observed in 1971 and 1972, it has been shown that five were completely blanked and four others were not 'filled' or 'worked full day'. Nine from sixteen leaves but seven, and seven is leas then 4y%;" The employes had argued that " . . . since carrier informs the incumbent of the position to report for work (assigns) on almost all of the Holidays, it removes it from the realm of casual into the realm of regular." The awards have required a showing that the overtime did not depend on service requirements, or contingency, or chance in order to take it out of the category of "casual or unassigned". There is no evidentiary foundation in this record which would permit the Board to find that the overtime was not "casual or unassigned", on the other hand, it is clear Award Mimber 21116 Page 3 Docket Number CL-20642 that the position had not worked for many of the holidays in 1971 and 1972. Whether carrier's 45%, or the employes' "much higher than 50%," is correct is not significant. In either case the degree of regularity is too low to permit the conclusion that the overtime is regular rather than casual and unassigned. The scheduling of work for the position depends on chance factors and it is therefore not a regular assignment. The claim is denied. FINDINGS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds: That the parties waived oral hearing; 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 Hoard has jurisdiction over the dispute involved herein; and That the Agreement was not violated. A W A R D Claim denied. NATIONAL RAILROAD ADJUSTMENT HOARD By Order of Third Division ATTEST:,-, ,ZZO A ev, ~dd - /- 0 A Executive Secretary Dated at Chicago, Illinois, this 16th day of July 1976.