NATIONAL RAILROAD ADJUSTMENT BOARD
Award Number
22634
THIRD DIVISION Docket Number CL-22445
Joseph A. Sickles, Referee
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(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8534) that:
(a) The Carrier violated the Clerical Agreement when they
did not properly pay R. H. Powers during the month of December, 1974.
(b) The Carrier should now recompute R. H. Powers' pay for
December, 1974 and allow him $58.70 in addition to any other pay due
him for this period.
OPINION OF BOARD: The Claimant requested ten (10) vacation days in
December of 1974. Carrier granted those days and
also included December 25 as one of the vacation days.
In support of his claim, the Employe cites Sections 3 and 4
of a September 1, 1949 Agreement:
"3 - The monthly rate of an employe will be compensation
for eight hours or less per day (as assigned by bulletin)
for the number of working days in a month. A month shall
be the number of days therein less rest days and the
holidays specified in Rule 39(b) or the days to be
observed as holidays in lieu of holidays.
4 - Regularly assigned employes hereunder will receive
for each semi-monthly pay period the fractional part of
the working days in the particular calendar month.
For example, in a calendar month containing 21 working
days an employe would receive 10/21 of the monthly rate
for the pay period having ten working days, and 11/21
of the monthly rate for the pay period having eleven
working days."
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Award Number 22631 Page 2
Docket Number CL-22445
Because December, 1974 had 21 working days (exclusive of
rest days and holidays), the Claimant urges that he was entitled
to 1/21st of his monthly rate per work and vacation days - i.e.,
$58.699 per day, and the same pay for Christmas Day.
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Carrier submits that proper compensation was made and that
no adjustment is due.
We do not concur with Carrier that the original claim was
"changed and expanded." It was essentially the same and the
Organization complied with the intent of the rule. Thus, we will
consider the case on its merits. In essence, Carrier defends its
position on the proposition that the Claimant holds a monthly rated
position and payment for holidays is incorporated in the monthly
rate and he received the precise amount due if he had worked the
entire month (and not taken vacation). Thus, Carrier asserts that
Claimant has failed to show any rule violation.
We have reviewed this rather extensive record at length,
and we have considered the various contentions and assertions
regarding history of the problem, practice, etc., and we have
reviewed the
cited Awards.
It may very well be - and we make no ruling thereon - that
on some other property, this Claimant's compensation for the claim
period would have been computed precisely and correctly if done as
was the case here. But here, we continue to return to that portion
of the parties' unique rule which appears to us to create a formula
basis for payment and there may very well be a monthly fluctuation.
Again, we emphasize that this Award speaks only to this
claim concerning the rule before
us
in this dispute.
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;
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;
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Award Number
22634
Page 3
Docket Number CL-22445
That this Division of the Adjustment Board has jurisdiction
aver 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:
Executive Secretary
Dated at Chicago, Illinois, this 9th day of November
1979.