Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27753
THIRD DIVISION Docket No. MW-26958
89-3-85-3-738
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
allow Trackman J. E. Ingram holiday pay for July 4, 1984 (System Docket
CR-1210).
(2) Trackman J. E. Ingram shall be allowed eight (8) hours of pay at
his straight time rate because of the violation referred to in Part (1) above."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was recalled from furlough on July 3, 1984, to perform
Trackman's duties in the vicinity of Lewistown, Pennsylvania. According to
the Carrier, these duties consisted of serving as watchman for telephone company employees who were
right of way. Claimant worked, and was compensated for July 3, July 4 (holiday) and July 5, 1984. Ef
The parties agree that the sole issue here is whether Claimant was,
in fact, "regularly assigned" on the days worked immediately preceding and
following the holiday within the meaning of that term under the holiday pay
provisions of the Agreement. The Organization contends that Carrier recalled
Claimant from service and assigned him to a newly created trackman position on
July 3, 4, 5 and then subsequently bulletined and awarded the position to
Claimant on July 9, 1984. This is not a case where Claimant was filling a
temporary vacancy caused by illness or vacation, the Organization insists.
Instead, when Carrier assigned Claimant the position, he was entitled to hold
Form 1 Award No. 27753
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89-3-85-3-738
said position until he was displaced or until the position was abolished in
accordance with Agreement rules. Under these circumstances, the Organization
argues that Claimant was a regularly assigned employee within the meaning of
Rule 14.
Carrier contends that the term "regularly assigned employee" as used
in Rule 14 has always been understood to mean an employee who owns an advertised position. Claimant'
rather for the benefit of the telephone company employees to protect them from
any traffic moving on the track. Carrier also stresses, contrary to the
Organization's position, that Claimant was not assigned to a bulletined position pending award and t
1984 was not the same position to which Claimant had been recalled from
furlough on July 3, 1984. Therefore, the Organization's attempt to characterize Claimant's assignmen
the claim be denied.
The Board has carefully reviewed the precedent awards and arguments
of the parties. Based on that review, we conclude that Carrier is not correct
when it asserts that the term "regularly assigned employee" means an employee
who owns an advertised position, having obtained his position either through
bidding or displacement rights. The better reasoned awards within this Division have taken a broader
identified with a specific position for indefinite duration fall within the
meaning of a "regularly assigned employee" even though the position they occupy is not bulletined.
The difficulty with the Organization's position, however, is that the
instant case does not fall even within the broader meaning attributed to "regularly assigned employe
assigned to an extra job of three days' duration. In contrast to Third Division Awards 14325 and 158
assignment was of a limited and temporary nature. Moreover, Claimant does not
come within the purview of the underlying purpose of the Paid Holiday provision, as explained in Thi
"***The key to the interpretation of the meaning of
the phrase 'regularly assigned' in Article II,
Section 1, is not necessarily found in the method
of assignment or in the detailed analysis of Agreement rules wherein the words are used in various
connections. As stated in the awards cited and in
Second Division Awards 2052 and 2169, the purpose
of the rule was to assure employes who had a normal
and dependable take-home pay that it would be maintained in weeks during which a holiday occurs.
Each case wherein it is claim that an employee is
'regularly assigned' so as to come within the
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Page 3 Docket No. MW-26958
89-3-85-3-738
application of this standard, rather than by rules
as to methods of assignment, workweek or extra em
ployes and other rules which use similar language
in dealing with subjects other than the special
subject of holiday pay. This is not to say that
such rules may not be helpful in deciding specific
cases; but they must always be considered in con
junction with the underlying intent of the National
Agreement."
As the foregoing Award illustrates, the purpose of the Paid Holiday
provision was to ensure that employees who had normal and dependable take-home
pay would maintain that regularity in weeks during which a holiday occurs.
That is the underlying rationale in the awards which have addressed this
issue. Claimant in this case had no normal or dependable take-home pay. At
the time he was recalled from furlough, all he could expect was a few days'
work and a few days' pay. The fact that he was subsequently awarded a position as Trackman does not,
on the dates in question. Accordingly, we conclude that he was not a "regularly assigned employee" w
entitled to holiday pay for July 4, 1984.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J/I~rver - Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.