The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
This Claim consists of two separate holiday pay claims arising from Thanksgiving and the day after Thanksgiving, November 22-23, 1990. The essential facts are undisputed.
Prior to the two holidays, Claimants provided their supervisor with two pieces of information regarding administration of the day after Thanksgiving holiday. The first piece was a note to Claimant Meyer from his General Chairman. It read as follows: Form 1 Award No. 30422
The second piece of information was a copy of a Letter of Understanding, dated January 8, 1982, from C. I. Hopkins, Jr., of the National Railway Labor Conference to R. T. Bates, president of the Organization. That letter read, in pertinent part, as follows:
The supervisor replied in writing to the Claimants on November 21, 1990. His note reads as follows:
Claimant Meyer was called in to work on both days. He worked 4.1 hours on Thanksgiving and 2.7 hours the day after Thanksgiving. Claimant Ivers was not called to work either day.
Claimants are both monthly rated employees who say they stayed by their phones on the two holidays as instructed by their supervisor. Form 1 Award No. 30422
The basis of the organization's claim for the day after Thanksgiving is that it was to be treated the same as a "rest day" for a monthly-rated employee. The Organization asserted that monthly rated employees are not required to protect their assignments on rest days under the current Agreement. The organization further asserted that an employee is entitled to extra compensation for standby protection on a rest day. In support, the organization cited Rule 45-D, which reads:
Carrier responded that the supervisor "reminded" the Claimants they were expected to protect the holidays. It went on to point out that Rule 12-D clearly provides monthly-rated employees are subject to call and noted that the only exception is during vacation periods. The pertinent portions of Rule 12-D read as follows:
With the issue thus joined, it was incumbent upon the Organization to provide probative evidence of the "rest day" exception to Rule 12-D that it said existed. A thorough reading of the on-property record fails to reveal any such evidence. Since the Organization bears the burden of proof in this regard, and it has not satisfied that burden on this record, this portion of the Claim must be denied. Form 1 Award No. 30422
The second portion of the Claim alleges that being subject to call on the Thanksgiving Day holiday, as instructed by the supervisor, entitled the Claimants to 24 hours pay (16 punitive and 8 double time) in addition to their proportionate monthly compensation for the day. It cites Rule 45-H in support. The Organization contends that, in essence, the Claimants had to remain by the phone and were not allowed the usual freedom of movement that Rule 12-D normally allows while subject to call.
The Carrier's response to this portion of the Claim is very similar. It again noted that the supervisor "reminded" the claimants of their "subject to call" obligation under Rule 12-D and pointed out that the rule provides no exception for holidays.
There is no evidentiary support for the organization's assertion that the Claimants were confined by the Carrier to their homes for the holiday. There is nothing in the supervisor's written note that imposes a more restrictive "subject to call" obligation than Rule 12-D normally requires. To the extent the supervisor's note provides any guidance at all, it appears to suggest only that the Claimant's protection obligation is the same as any other holiday. No evidence of a more restrictive obligation has been found elsewhere in the record. Under the circumstances, we must conclude the organization has not proven that an unusually restrictive "subject to call" status was required of Claimants on the Thanksgiving Day holiday. Accordingly, this portion of the Claim must also be denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBERS DISSENT
TO
When resolving disputes in this industry, Referees must exercise caution. The parties often raise multifarious issues that while being in support of either party's argument, are not the genesis of the Question At Issue.
As noted, the Majority acknowledged that the organization provided evidence indicating that the day after Thanksgiving Day is considered the same as a "Rest Day." The Agreement additionally states that monthly rated employees are not subject to call on rest days.
The crux of this involves a Supervisor who instructed the Claimants that they were expected to protect the holidays and were not allowed to leave their homes. As evidenced in the record the Claimants did not agree with these instructions and challenged the Supervisor's interpretation of the Agreement. The record further reveals that the Supervisor refused to rescind his orders and advised the Claimants that they were expected to provide protection during the holidays. As evidenced, the Claimants complied with these orders and responded to several emergency calls during this time.
Notwithstanding the Organization's arguments concerning the day after Thanksgiving Day being considered a rest day, Agreement 12-D clearly allows employees the latitude to leave their homes, wherein it states: ·When such employees desire to leave their
headquarters or section, they will notify the person designated by the Carrier that they will be absent, about when they will return, and when possible where they may be found." Obviously, the Agreement was violated and Claimants were not allowed to exercise the option of Agreement Rule 12-D.
The record reflects that Agreement Rule 45 lends credence to the Organization's position. The language clearly defines the meaning of "rest days" vs. "subject to call days." As also noted in Section (H) of that Rule, it states, "Monthly-rated employees will be compensated under Rule 11 for any service required by the Carrier to be performed on one of the designated holidays specified in Rule 6.· Notwithstanding the clear meaning of the Agreement, the Board has historically held that, "Those who stand and wait also serve."
The Majority, while denying the instant claim on the basis that the organization failed in the burden of proof, which we disagree, went beyond simply denying the claim on that basis and provided an interpretation of a National Holiday Agreement that is contrary to the clear understanding that is prevalent in the railroad industry.
In view of the foregoing, it is obvious that the findings of the Majority are based on an unclear reading and understanding of the Agreement, rendering the award palpably erroneous and of no value.