THIRD DIVISION
Award No. 44532 Docket No. MW-43917
22-3-NRAB-00003-210219
The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(BNSF Railway Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier improperly recouped Claimants' New Year's Eve and New Year's Day Holiday by letters dated June 27 and 28, 2015 (System File C-15-H050-l/10-15-0334 BNR).
As a consequence of the violation referred to in Part (1) above, Claimants A. Klauser, K. Polson, J. Morrow, J. Hickey, Jr., C. Bonderer, A. Wilson, S. Olson, A. Franch, D. Price, R. Boone, J. Davis, N. Reed, R. Siggers, C. Proffitt, J. Wasmer, M. Owens, Jr., J. Pitts, M. Boyd, M. Trotter, L. Montgomery, J. Smith, J. Crooks and
K. Edenburn shall now each be paid for sixteen (16) straight time hours for the New Year's Eve Holiday of December 31, 2014 and the New Year's Day Holiday of January 1, 2015.”
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 were given due notice of hearing thereon.
Pertinent provisions of the parties’ collective bargaining agreement state as follows in pertinent part:
APPENDIX B
NON OPERATING (M of W) NATIONAL HOLIDAY PROVISIONS
The following represents a synthesis in one document, for the convenience of the parties, of the current Holiday provisions of the National Agreement of August 21, 1954 and amendments thereto provided in the National Agreements of August 19, 1960, November 20, 1964, May 17, 1968, February 10, 1971, June 16, 1976 and December 11,
1981, implementing Article III-Holidays- of the January 29, 1975 National Agreement, with appropriate source identification. This is intended as a guide and is not to be construed as constituting a separate agreement between the parties. If any dispute arises as to the proper interpretations or applications of any provision, the terms of the appropriate agreement shall govern.
Section 1.
Subject to the qualifying requirements contained in Section 3 hereof, and to the conditions hereinafter provided, each hourly and daily rated employes shall receive eight hours' pay at the pro rata rate for each of the following enumerated holidays:
New Year's Day Labor Day
President's Day Day After Thanksgiving Day
Good Friday Thanksgiving Day
Memorial Day Christmas Eve (the day before Christmas is observed)
Fourth of July Christmas Day
New Year's Eve (the Day before New Year's Day is observed)
(ART. II--HOLIDAYS-Section 2(a)-2/10/71 Agreement and Section 2- 6/16/76 Implementing Agreement. 12/11/81 National Agreement)
Holiday pay for regularly assigned employes shall be at the pro rata rate of the position to which assigned.
For other than regularly assigned employes, if the holiday falls on a day on which he would otherwise be assigned to work, he shall, if consistent with the requirements of the service, be given the day off and receive eight (8) hours' pay at the pro rata rate of the position which otherwise would have worked. If the holiday falls on a day other than a day on which he otherwise would have worked, he shall receive eight hours' pay at the pro rata rate of the position on which compensation last accrued to him prior to the holiday.
Subject to the applicable qualifying requirements in Section 3 hereof, other than regularly assigned employes shall be eligible for the paid holidays or pay in lieu thereof provided for in paragraph B above, provided
Compensation for service paid him by the carrier is credited to 11 or more of the 30 calendar days immediately preceding the holiday and
He has had a seniority date for at least 60 calendar days of continuous active service preceding the holiday beginning with the first day of compensated service, provided employment was not terminated prior to the holiday by resignation, for cause, retirement, death, non- compliance with a union shop agreement or disapproval of application for employment.
The provision of this Section and Section hereof applicable to other than regularly assigned employes are not intended to abrogate or
supersede more favorable rules and practices existing on certain carriers under which other than regularly assigned employes are being granted paid holidays.
NOTE: This rule does not disturb agreements or practices now in effect under which any other day is substituted or observed in place of any of the above enumerated holidays. (ART. III-Holidays-Section 1-5/17/68 Agreement) * * *
Section 3.
A regularly assigned employe shall qualify for the holiday pay provided in Section 1 hereof if compensation paid him by the carrier is credited to the workdays immediately preceding and following such holiday or if the employe is not assigned to work but is available for service on such days. If the holiday falls on the last day of a regularly assigned employe's workweek, the first workday following his rest days shall be considered the workday immediately following. If the holiday falls on the first workday of his workweek, the last workday of the preceding workweek shall be considered the workday immediately preceding the holiday. Except as provided in the following paragraph, all others for whom holiday pay is provided in Section 1, hereof, shall qualify for such holiday pay is on the day preceding and the day following the holiday they satisfy one or the other of the following conditions:
(i) Compensation for service paid by the carrier is credited; or (ii) Such employe is available for service;
NOTE: 'Available' as used in subsection (ii) above is interpreted by the parties to mean that an employe is available unless he lays off of his own accord or does not respond to a call, pursuant to the rules of the applicable agreement, for service. For purposes of Section 1, other than regularly assigned employes who are relieving regularly assigned employes on the same assignment on both the work day preceding and the work day following the holiday will have the workweek of the incumbent of the assigned position and will be subject to the same qualifying requirements respecting service and availability on the work
days preceding and following the holiday as apply to the employe whom he is relieving. Compensation paid under sick-leave rules or practices will not be considered as compensation for purposes of this rule.
The record indicates that all Claimants had established and held seniority of more than sixty (60) calendar days within various classes within the Carrier's Maintenance of Way Department. Additionally, there is no dispute that Claimants all received compensation for service paid to them by the Carrier and credited to eleven
(11) or more of the thirty (30) calendar days immediately preceding the New Year's Eve and the New Year's Day holidays. Moreover, it was noted that all Claimants were other than regularly assigned employes (i.e., in furloughed status) at the time of the New Year's Eve (December 31, 2014) and the New Year's Day (January 1, 2015) holidays.
On the Claimants' paychecks dated June 27 and 28, 2015, the Carrier recouped the Claimants' payment for the New Year's Eve and New Year's Day holidays. This action is the crux of the dispute at hand.
It is uncontested on the record that each of the Claimants was on furlough on the dates pertinent hereto. The Organization contends that this means they were unquestionably ‘other than regularly assigned’ employes. Moreover, it is undisputed that Claimants all met the criteria for receipt of New Year’s Eve and New Year’s Day holiday pay.
The Organization argues the record is totally devoid of any probative evidence to support the Carrier's contention. Further, it notes that the Carrier could have presented copies of the Claimants' work histories for verification, but failed to do so. The Carrier has cited no rule of the Agreement or mutually agreed exception regarding permanent bump options. Further, no bump list has been provided. The Organization focuses on the applicable language and argues it should be enforced as written.
The Carrier explains that pay was recouped from each of the Claimants because it was verified through Manpower that each of them had permanent bump options for either December 30, 2014 or January 2, 2015. In its view, because they had permanent bump options, there was work opportunity for them. Since they did not work the day before or after the holiday, they did not qualify to receive holiday pay for the days in question. It is well established that an employe must work at least six hours a day on both the day before and after a holiday to qualify for holiday pay. In support of its position, the Carrier cites Awards 31384 and 40873. It further notes that one of the named Claimants resigned in 2016, and is therefore no longer an eligible claimant.
The mission of this Board is to enforce the terms of the parties’ Agreement as written; we have no jurisdiction to alter those terms in any way. It is undisputed that the Claimants were furloughed at the time of the New Years’ holidays in 2015. The Organization does not concede that the Claimants had permanent job bumps available, and the Carrier has not established this by evidence. However, it does argue that because of the availability of bumps, the Claimants in question do not fall into the category of “other than regularly assigned employees.”
The problem with this argument is that it is inconsistent with the express language used in the Agreement to articulate the parties’ intent. The drafters of the Agreement simply did not address the situation of furloughed employes with available bumps; they recognized no difference between furloughed employes with no available bumps and furloughed employees with available bumps. Instead, they elected to use broad language which sweeps in any employe who is not regularly assigned. Had the drafters envisioned the distinction advocated by the Carrier, they could have and would have created an exception. This Board can find not basis for concluding that the drafters intended to create such a limitation on “other than regularly assigned employees.”
The Claimants must be considered “other than regularly assigned employes” because they did not have a regular assignment. No exception has been recognized by the parties regarding bump status. If such an exception is to be recognized, the parties must negotiate it.
Claim sustained. Eligible Claimants shall be repaid the holiday pay deducted from their paychecks for New Year’s Eve and Day, 2015. The claim of any Claimant who has resigned from employment shall be deemed moot. Any claim not expressly granted herein is denied.
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 8th day of October 2021.