C:\MYDOCU~1\SCHEDU~2\3-23450.htm

NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 23450

THIRD DIVISION Docket Number CL-23338

John B. LaRocco, Referee

(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: Chesapeake and Ohio Railway Company STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8961) that: CLAIM N0. 1 (File Balt.-2061), Carrier file CG-9262) (a) The Carrier violated terms of the Clerks General Agreement, October 28, 1974, when they charged Mr. Bernard T. Kerrigan with a days vacation and his holiday pay is to be computed into his monthly rate, and (b) Mr. Bernard T. Kerrigan, incumbent of position E-23, Debt. Serv. Clerk, rate $1277.21 per month should now be compensated for the one day vacation charged against him for October 28, 1974, or allowed 8 hours at the pro rata rate of $1277.21 per month. CLAIM N0. 2 (File Balt.-2091, Carrier file CG-9295) (a) The Carrier violated the Clerical Agreement when they did not properly pay Geraldine S. Bonnuccelli during the month of Dec. 1974, and (b) The Carrier should now recompute Geraldine S. Bonnuccelli's pay for Dec. 1974 and allow her $56.88 in addition to any other pay due her for this period. Award Number 23450 Page 2 Docket Number CL-23333 CIA IM N0. 3 (File Balt.-2092, Carrier file CG-9296) (a) The Carrier violated the Clerical Agreement when they did not properly pay LeRoy C. Behrens during the month of Dec. 1974, and (b) The Carrier should now recompute LeRoy C. Behrens pay for Dec. 1974 and allow him $56.88 in addition to any other pay due him for this period. CLAMNO . 4 (File Balt.-2093, Carrier file CG-9297) (a) The Carrier violated the Clerical Agreement when they did not properly pay Robert J. Bonnuccelli during the month of Dec. 1974, and (b) The Carrier should now recompute Robert J. Bonnuccelli's pay for Dec. 1974 and allow him $58.70 in addition to any other pay due him for this period. CLAIM N0. 5 (File Balt.-2094, Carrier file CG-9298) (a) The Carrier violated the Clerical Agreement of the BRAC when they did not properly pay George J. Wilhelm during the month of Dec. 1974, and (b) The Carrier should now recompute George J. Wilhelm's pay for Dec. 1974 and allow him $56.70 in addition to any other pay due him for this period. CLAIM (File Balt.-2095, Carrier file CG-9299) (a) The Carrier violated the Clerical Agreement when they did not properly pay Robert L. Taffe during the month of Dec. 1974. (b) The Carrier should now recompute pay for Dec. 1974, and allow him $58.70 in addition to any other pay due him for this period. (File Balt.-2096, Carrier file CG-9300) (a) The Carrier violated the Clerical Agreement when they did not properly pay Norman W. Stewart during the month of Dec. 1974, (b) The Carrier should now recompute Norman W. Stewarts pay for Dec. 1974 and allow him $59.60 in addition to any other pay due him for this period. Award Number 23450 Page 3 Docket Number CL-23338 CLAIM N0. 8 (File Balt.-2097, Carrier file CG-9301) (a) The carrier violated the Clerical Agreement when they did not properly pay Doris A. Eldridge during the month of Dec. 1974, (b) The Carrier should now recompute Doris A. Eldridge's pay for Dec. 1974 and allow her $56.87 in addition to any other pay due her for this period. CLAIM N0. 9 (File Balt.-2098, Carrier file CG-9302) (a) The Carrier violated the Clerical Agreement when they did not properly pay Carmelo J. Liberto during the month of December 1974. (b) The Carrier should now recompute Carmelo J. Liberto's pay for December 1974 and allow him $58.70 in addition to any other pay due him for this period. CLAIM N0. 10 (File Balt.-2099, Carrier file CG-9303) (a) The Carrier violated the Clerical Agreement when they did not properly pay Joseph F. Ebert during the month of Dec. 1974, and (b) The Carrier should now recompute Mr. Joseph F. Ebert's pay for Dec. 1974 and now allow him $58.70 in addition to any other pay due him for this period. CLAIM N0. 11 (File Balt.-2100, Carrier file CG-9304) (a) The Carrier violated the Clerical Agreement when they did not properly pay Marjorie E. Branch during the month of Dec. 1974. (b) The Carrier should now recompute Marjorie E. Branch's pay for Dec. 1974 and allow her $51.24 in addition to any other pay due her for this period. CLAIM N0. 12 (File Balt.-2211, Carrier file CG-10075) (a) The Carrier violated the Clerical Agreement by not paying W. E. Harrigan properly for the montn of July, 1975, and (b) The Carrier should now recompute W. E. Harrigan's pay for July, 1975 and allow him $60.53 in addition to any other pay due him for this period. Award Number 23450 Page 4 Docket Number CL= 3338 CLAIM No. 13 (File Balt.-2257, Carrier file CG-10430) (a) The Carrier. violated the Clerical Agreement when they did not properly pay George J. Wilhelm during the month of December, 1975. (b) The Carrier should now recompute George J. Wilhelm's pay for December, 1975 and allow him $64.72 in addition to any other pay due him for this period. CLAIM N0. 14 (File Balt.-2258, Carrier file CG-10431) (a) The Carrier violated the Clerical Agreement when they did not properly pay Joseph F. Ebert during the month of.Dec. 1975. (b) The Carrier should now recompute Joseph F. Ebert's pay for December 1975 and allow him $64.72 per addition to any other pay due him for this period. CIAIM N0. 15 (File Balt.-2259, Carrier file CG-10432) (a) The Carrier violated the Clerical Agreement when they did not properly. pay Robert J. Bonuccelli during the month of December, 19 75. (b) The Carrier should now recompute Robert J. Bonuccelli, pay for December, 1975 and allow him $64.72 in addition to any other pay due him for this period. CIAIM NO. 16 (File Balt.-2260, Carrier file rG-10433) (a) The Carrier violated the Clerical AgtAment when they did not properly pay R. E. Sutherland during the month of December, 1975. (b) The Carrier shoud now recompute R. B. Sutherland pay for Dec. 1975 and allow him $62.70 in addition to any other pay due him for this period. CIAIM t,0. 17 (File Balt.-2261, Carrier file C6,10434) (a) The Carrier violated the Clerical Agreement when they did not properly pay Edward M. Keiser during the month of Dec. 1975, and (b) The Carrier should now recompute Edward M. Keiser's pay for December 1975, and allow him $69.92 in addition to any other pay due him for this period. Award Number 23450 Page 5 Docket Number CL-23338 CIA IM N0. 18 (File Balt.-2262, Carrier file CG-10435) (a) The Carrier violated the Clerical Agreement when they did not properly pay Robert H. Powers during the month of December, 1975. (b) The Carrier should now recompute Robert H. Powers pay for Dec. 1975 and allow him $64.72 in addition to any other pay due him for this period. CLAIM N0. 19 (File Bait.-2263, Carrier file CG-10436) (a) The Carrier violated the Clerical Agreement when they did not properly pay Ms. Doris A. Eldridge during the month of December, 1975. (b) The Carrier should now recompute Ms. Doris A. Eldridge pay for December, 1975 and allow her $62.71, in addition to any other pay due her for this period. CLAIM N0. 20 (File Balt.-2266, Carrier file CG-10443) (a) The Carrier violated the Clerical Agreement when they did not properly pay Danny L. Smith during the month of December, 1975. (b) The Carrier should now recompute Danny L. Smith's pay for December 1975 and allow him $73.80 in addition to any other pay due him for this period. CIA ~I, N0. 21 .(File Balt.-2267, Carrier file CG-10444) (a) The Carrier violated the Clerical Agreement when they did not properly pay Norman W. Stewart during the month of December, 1975. (b) The Carrier should now recompute Norman W. Stewarts' pay for December 1975 and allow him $65.71 in addition to any other pay due him for this period. CIAIM N0. 22 (File Balt.-2541, Carrier file CG-11435) (a) The Carrier violated the Clerical Agreement when they did not properly pay R. H. Powers during the month of-July 1976. The Carrier should now recompute R. H. Powers pay for July 1976 and allow him $72.10 in addition to any other pay due him for this period. Award Number 23450 Page 6 Docket Number CL-23338 -CIAIM N0. 23 (File Balt.-2561, Carrier file CG-11708) (a) The Carrier, violated the Clerical Agreement when they did not properly pay James G. Prather during the month of September, 1976. (b) The carrier should now recompute James G. Prather's pay for September, 1976 and allow him $75.17 in addition to any other pay due him for this period. CIA IM N0. 24 (File Balt.-2566, Carrier file CG-11764) (a) The Carrier violated the Clerical Agreement when they did not properly pay John McGee during the month of September, 1976. (b) The Carrier should now recompute John McGee's pay for September 1976 and allow him $76.14 in addition to any other pay due him for this period. CIA EI N0. 25 (File Balt.-2575, Carrier file CG-11840) (a) The Carrier violated the Clerical Agreement when they did not properly pay L. E. King during the month of September 1976. (b) The Carrier 'should now recompute L.E_ King's pay for September 1976 and allow him $72.10 in addition to any other pay due him for this period. CLAIM N0. 26 (File Balt.-2576, Carrier file CG-11841) (a) The Carrier violated the Clerical Agreletient when they did not properly pay E. P. Kipps during the month of September 1976. (b) The Carrier should now recompute E. P. Kipps' pay for September 1976 and allow him $73.19 in addition to any other. pay due him for this period. CIA IM N0. 27 (File Balt.-2577, Carrier file CG-11842) (a) The Carrier violated the Clerical Agreement when they did not properly pay Ann R. King during the month of September 1976. (b) The Carrier should now recompute Ann R. King's pay for September 1976 and allow her $69 .93_in addition to any other pay due her for this period. Award Number 23450 Page 7 Docket Number CL-23338 CLAIM N0. 28 (File Balt.-2583, Carrier file CG-11845) (a) The Carrier violated the Clerical Agreement when they did not properly pay John G. Baublitz, Jr., during the month of November, 1976 (b) The Carrier shall now recompute John G. Baublitz's pay for November, 1976 and allow him $169.62 in addition to any other pay due him for this period. . CIA 114 N0. 29 (File Balt.-2602, Carrier file CG-11946) (a) The Carrier violated the Clerical Agreement and others when they did not properly compensate Mr. G. W. Ball ID-2154811 during the month of Dec. 1976, and (b) The Carrier should now recompute G. W. Balls wages for the last week of Dec. 1976 and the first week of Jan. 1977 to include Dec. 25, 1976 Xmas and now allow him one (1) day at the rate of $79.96 in addition to any other earnings due him for this period. CLAIM N0. 30 (File CC-194, Carrier file .CG-11946) (a) The Carrier violated the Clerical Agreement when they did not properly pay Howard E. Bern during the month of September 1976. (b) The Carrier should now recompute Howard E. Hern's pay for September 1976 and allow him $76. 15 in addition to any other pay due him for this period. CLAIM N0. 31 (File CC-195, Carrier file CG-11780) (a) The Carrier violated the Clerical Agreement when they did not properly pay C. 0. Reynolds during the. month of Nov., 1976. (b) The Carrier should now recompute C. O. Reynolds pay for Nov. 1976 and allow him $94.70 in addition to any other pay due him for this period. CIA IM N0. 32 (File CC-196, Carrier file CG-11781) (a) The Carrier violated the Clerical Agreement when they did not properly pay John Hathias,_Jr., during L:" moneh of Sept. 1976. (j) The Carrier should now re-compute John Mathias, Jr., pay for Sept. 1976 and allow him $78.12 in addition to any other pay due him for this period. Award Number 23450 Page 8 Docket Number CL-23338 MAIM N0. 33 (File CC-197, Carrier file CG-11782) (a) The Carrier violated the Clerical Agreement when they did not properly pay W. D. Nelson during the month of Nov., 1976. (b) The Carrier should now recompute W. A. Nelson's Pay for Nov. 1976 and allow him $79.96 in addition to any other pay due him for this period. (File CC-198, Carrier file CG-11870) (a) The Carrier violated the Clerical Agreement and others when they did not properly compensate Mr. W. T. Clements during the month of Dec. 1976 (b) The Carrier should now recompute Mr. W. T. Clements wages for Dec. 24 and Dec. 25, 1976 and now allow him $148.45 in addition to any other pay.due him for this pay period. LIARL NO 35 (File CC-199, Carrier file CG-11871) (a) The Carrier violated the Clerical Agreement-and others when they did not properly compensate Mr. C. 0. Reynolds during the month of Dec. 1976. (b) The Carrier should now recompute Mr. C. 0. Reynolds wages for Dec. 24 and Dec. 25, 1976 and now allow him $148.45 in addition to any other pay due Mr. Reynolds for this pay period. C~.~ (File CLIC- 176, Carrier file CG-11947) (a) The Carrier violated the Clerical Agreement-when they did not properly pay William Martin during the month of Dec., 1976. (b) The Carrier should now recompute William Martins pay for Dec., 1976, and allow him $152.40 in addition to any other pay due him for this period. CLAIM N0. 37 (File CLIC-177, Carrier file CG-12868)' (a) The Carrier violated terms of the BRAC Clerical Agreement and others when they did not properly compensate'Mr. D. L. Darling for two (2) days as is provided for in Article 1, Para. E and F of the BRAC rules, and (b) Mr. D. L. Darling, incumbent of position E-3 Supervisor, rate $1619.21 per month should now be allowed two (2) additional days vacation or compensation in lieu of because of this violation based on his monthly rate of $1619.21 per month. Award Number 23450 Page 9 Docket Number CL-23338 CLAIM N0. 38 (File CLIC-181, Carrier file CG-12265) (a) The Carrier violated the Clerical Agreement when they did not properly pay Mr. P. K. O'Donnell during the month of Dec. 1976. (b) The Carrier should now recompute Mr. 0'lbnnells pay for December 1976 and allow him $75.12 in addition to any other pay due him for this period. CLAN No. 39 (File 504-2780, Carrier file CG-12581) (a) The Carrier violated the Clerks' Agreement when they did not properly pay J. D. Myers during the month of April, 1977. (b) The Carrier shall now recompute J. D. Myers' pay for April, 1977 and allow him $82.11 in addition to any other pay due him for this period. CLAIM N0. 40 (File 666-454, Carrier file CG-9519) (a) That the Carrier violated the terms of the General Agreement and Memoranda thereto, when for the pay period of December 14 through December 27, 1974, which was received on January 10, 1975, it failed and refused to adequately compensate Clerk, J. J. Heiert, the incumbent of the Position of Division 'Storekeeper, CE-1, Rate 1101.27 at Stevens, Ky. and, (b) That the Carrier further violated the Agreement by failing to adjust this matter during the pay period of December 28, 1974 throa* January 10, 1975, which was received on January 24, 1975, and (c) That the Carrier shall now arrange to allow Clerk Heiert one day's pay at the daily rate of $52.45 in addition to all other earnings, which is the amount he would have earned had he been properly compensated under the terms of the Agreement. CLAIM N0. 41 (File Chgo.-666, Carrier file CG-12173) (a) The Carrier violated the Clerks' Agreement when they did not properly pay Patrick Joyce during the month of December, 1976. (b) The Carrier shall now recompute Patrick .Joyce's pay for December, 1976 and allow him one (1) day'.: pay at the rate of $1438.07 per month in addition to any other pay due him for this period. Award Number 23450 Page 10 Docket Number CL-23338 CLAIM N0.,.42 (File HV-820, Carrier file CG-9293) (a) The Carrier violated the Clerks' Agreement when they did not properly pay Harold L. Williams during the months of December 1972, November 1973, December 1973, and September 1974. (b) The' Carrier shall now recompute Harold L. Williams' pay and allow him $47.19 for December 1972, $47.21 for November 1973, $49.45 for December 1973 and $51.44 for September 1974. CLAIM N0. 43 (File 504-2824, Carrier file CG-13387) (a) The Carrier violated the Clerks' Agreement when it failed to properly compensate G. D. Hawk.for the month of December, 1977. (b) That the Carrier shall now recompute G. D. Hawk's pay for December, 1977 and allow him an additional $143.31 in addition to other pay for this period. CLAIM N0. 44 (File Balt.-3156, Carrier file CG-14388) (a) The Carrier violated the Clerks' Agreement when they did not properly pay J. D. Iden during the month of Nov., 1978. (b) The Carrier should now recompute J. D. Idens pay for Nov., 1978 and allow him $79.18 in addition to any other pay due him for this period. OPINION OF BOARD: This case consists of a group of forty-four claims brought by monthly rated employes under the applicable agreements in effect between the organization and the Carrier. Each Claimant is asking for one or more days pay pro rated from the monthly rate for vacation pay when a holiday fell within the Claimant's vacation period between 19714 and 1978. The facts are not in dispute. When a holiday occurred during a claimant's vacation period, the Carrier included the holiday in the Claimants' total number of vacation days. The Claimants received their usual total monthly salary. In some instances, the Carrier computed their salary payments by using the number of work days plus the holiday. At other times, the Carrier computed their twice monthly salary payments by using only the number of working days. Regardless of the method of computation, the Carrier paid the Claimants their total monthly salary due under the agreement. Holiday pay is already included in the Claimants' salary. The issue is whether a Claimant is entitled to an additional day's pay for a holiday which is also counted as a vacation day when a holiday falls within the Claimant's vacation period. If an additional day of pay is due, each Claimant would be receiving more than his monthly salary. We recently considered this identical issue based on similar facts Award Number 23450 Page 11 Docket Number CL-23338 between these same parties in Third Division Award No. 22634 (Sickles) where we found that under the September 1, 1949 Agreement, the Claimant was entitled to 1/21 of his monthly salary (since the particular month involved contained twenty-one working days). The carrier concedes that Award 22634 concerned a claim identical to the forty-four claims herein but argues that the award was palpably erroneous and should not control the disposition of these claims. In order to bring predictability to the relationship between the Carrier and its employes, we are bound by precedent interpreting the applicable agreements unless the challe erroneous. Third Division Awards No. 4788 (Robertson); No. 11480 (Hall); No. 15740 (Kenan) and No. 22038 (Roukis). Therefore the burden is on the Carrier to show that Award 22634 was an obvious error and if the Carrier does not sustain its burden, then Award 22634 fixed the rights of the parties in this controversy. Third Division Award No. 7252 (Wyckoff). In support of its argument, the Carrier essentially argues that Avard No. 22634 lacks a firm foundation because Article II of the 1954 National vacation Agreement expressly states that holidays falling during an employe's vacation period should be counted as work days. Also, according to the Carrier, each Claimant received his full monthly salary and there is no contract provision justifying an additional day's pay over and above the monthly rate. The Organization urges us to affirm Award No. 22634 not only because we have an obligation to follow precedent under the doctrines of res judicata and stare decisis but also because the September 1, 1949 Agreement is an adequate justification for the decision. Article I, paragraphs (a) and (e) refer to vacation days as work days which implies that holidays should be excluded. In addition, Sections Three and Four of that Agreement provides for the computation of pay based only on the number of work days in a given month implying, as we said in Award No. 22634, that the formula creates a " .basis for payment and there may very well be a monthly fluctuation." Furthermore, the Organization contends that pursuant to Paragraph Seven of the 1949 Agreement, a monthly rated employe shall not receive any less compensa tion during the year than if he bad been paid on a daily basis. A daily rated employe would have been paid for both the holiday and vacation day or not charged with a vacation day for a holiday falling within his vacation period. After carefully considering all its arguments, we do not concur with the Carrier that Award No. 22634 is palpably erroneous. The Carrier places primary reliance on Article II of the 1954 National Vacation Agreement which we note was cancelled by a subsequent agreement. Though parts of Article II are currently incorporated into Article III of the 1972 Agreement, they deal with extensions of the vacation period which are not at issue here. Thus, we must look, as we did in Award No. 22634, to the 1949 Agreement. Monthly rated employes would be in a disadvantageous position when compared to daily rated employes unless they were compensated zor a vacation day which was also a holiday. Also, the computation formula does not preclude a monthly zewed -,r'=ye from receiving more than his monthly salary during a given month. ~~c Award No. 22634 is within the realm of reasonableness, we are bound to follow that precedent. As we ruled in Award No. 22634, our decision is limited to this property. Award Number 23450 Docket Number ;L-23338 Page 12 To avoid confusion regarding our remedy, the Claimants in each of the forty-four claims shall be paid one additional day at the appropriate pro rata rate for each holiday included as a "vacation day". On this property, holidays are not to be included as "work days" in determining the number of "work days" in a month. FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and 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 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 id A R D Claims are sustained in accordance with the Opinion. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: ,, =-----.,~ E~cecutive Secretary c C,_ I ':~ E n. Dated at Chicago, Illinoisq this 8th day of December-1981h_.'. V ~u- .