CARRIER'S STATEMENT OF FACTS: At the time this claim arose the claimant was employed as a regularly assigned carman helper at the carrier's St. Cloud, Minnesota car shop. The case involves a claim for holiday pay for New Year's Day 1962 under article III of the August 19, 1960 national agreement, which reads as follows: "ARTICLE III. HOLIDAYS Article II, Sections 1 and 3 of the Agreement of August 21, 1954, are hereby amended, effective July 1, 1960, to read as follows: Section 1. Subject to the qualifying requirements applicable to regularly assigned employes contained in Section 3 hereof, each regularly assigned hourly and daily rated employe shall receive eight hours' pay at the pro rata hourly rate of the position to which assigned for each of the following enumerated holidays when such holiday falls on a workday of the workweek of the individual employe: New Year's Day Washington's Birthday Fourth of July Subject to the qualifying requirements applicable to other than regularly assigned employes contained in Section 3 hereof, all others who have been employed on hourly or daily rated positions shall receive eight hours' pay at the pro rata hourly rate of the position on which compensation last accrued to him for each of the aboveidentified holidays if the holiday falls on a work day of the work week as defined in Section 3 hereof, provided (1) compensation for service paid him by the carrier is credited to 11 or more of the 30 calendar days immediately preceding the holiday and (2) he has had a seniority date for at least 60 calendar days or has 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 provisions of this Section and Section 3 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 ob- 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 week as defined in Section 3 hereof, provided (1) compensation for service paid him by the carrier is credited to 11 or more of the 30 calendar days immediately preceding the holiday and (2) he has had a seniority date for at least 60 calendar days or has 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 provisions of this Section and Section 3 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 ob- 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. All others for whom holiday pay is provided in Section 1 hereof shall qualify for such holiday pay if on the workday preceding and the workday 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, the workweek for other than regularly assigned employes shall be Monday to Friday, both days inclusive, except that such 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. For other than regularly assigned employes, whose hypothetical work week is Monday to Friday, both days inclusive, if the holiday falls on Friday, Monday of the succeeding week shall be considered the workday immediately following. If the holiday falls on Monday, Friday of the preceding week shall be considered the workday immediately preceding the holiday. Compensation paid under sick-leave rules or practices will not be considered as compensation for purposes of this rule." The claims have been processed through the regular channels and considered in conference. POSITION OF CARRIER: As previously stated, claimant reported for work at 6:00 P. M., December 24, 1963. He worked only 2 hours and then left the job without permission. The second trick at Rouge Repair Track repairs multi-level automobile rack cars for set-up automobile loading. The supply and demand for these cars is such that the cars repaired on second trick will be spotted on loading ramp subsequent to being repaired and used for the next morning loading. The maintenance of these cars cannot be deferred without adverse consequences to shipper and in turn to the carrier. When claimant left the job with cars on hand which required repair, this carrier could very well have failed to have cars available for loading by a major automobile manufacturer thus causing its loading line to shut down. However, by having other employes work overtime, carrier was able to avoid such a situation. The paid holiday rule contemplates that compensation must be earned and the employe be available on the work days before and after a holiday in order for him to be eligible for the straight-time holiday pay. A work-day is 8 hours. Rule 1 – Hours of Service - of the working agreement referred to above reads: "Except as otherwise provided in this agreement, eight consecutive hours, exclusive of meal period, shall constitute a day's work. All employes coming under the provisions of this agreement, except as otherwise agreed to between the parties hereto in writing, shall be paid on an hourly basis." An employe is expected to work the full 8 hours unless he is excused. Claimant was not excused and did not complete his required tour of duty. In fact it is quite apparent he only reported for work in the first place anticipating he would qualify for the 8-hour holiday pay for Christmas Day. It is the carrier's contention that the words "compensation paid him by the carrier" was intended to mean the full amount of work time required by the carrier on the qualifying days—not merely some token amount. To carry it to a ridiculous conclusion, a man might work only 5 minutes and then be considered qualifying for holiday pay. In article III – holidays – quoted above, "available" is defined to mean "that an employe is available unless he lays off of his own accord". The claimant by walking off the job after working only a small portion of his 8-hour tour of duty was laying off of his own accord. He was not available for the Those qualifying requirements for regularly assigned employes are a result of the recommendations of presidential emergency board No. 106 which considered the demands for holiday pay and other benefits. The recommendations of emergency board No. 106 in connection with qualifying requirements were as follows: "In order to qualify to receive pay on a holiday which falls on a workday of such employe, he must have worked the workday of his workweek immediately preceding and following such holiday." (Report to the President by Emergency Board No. 106, p. 41) From the above recommendation it is clear that it was intended that a regularly assigned employe should "work" both his workday immediately preceding and his workday immediately following the holiday. Emergency Board No. 106 did not recommend that an employe qualify by putting in a token appearance at work, for it clearly stated that the employe should work his workday. The parties adopted that recommendation but merely changed the wording to "compensation credited” so that there would be no argument in cases where third shifts are credited to one day even though they are worked in part or in whole during the hours of another calendar day. The change in language does not change the meaning of the qualifying requirement to allow an employe to qualify for holiday pay by merely reporting to work and laying off almost immediately. The requirement that an employe actually work his workday immediately preceding and following the holiday was recognized by the non-operating employe's counsel, Mr. Lester P. Schoene, in his opening statement before presidential emergency board No. 130. That board considered the increased holiday demands served by the Organizations which resulted in the August 19, 1960 agreement. Mr. Schoene's statement was as follows: "Under the present holiday rule, it is a rigid qualification for holiday pay that the employe work on the workday immediately preceding and following the holiday. That was recommended by the Emergency Board in 1954 and its purpose is, of course, clear. It is to avoid absenteeism by prolonging or extending the holiday or anticipating or extending, but by seeking to avoid such an abuse on the part of the employes, the way was opened for very severe abuses on the part of management. We do not propose to open the matter up to absenteeism on the part of the employes. We propose that an employe who has worked within a defined period of time before the holiday be qualified unless he is assigned to work on the day before or the day after the holiday and fails without good cause to report for work, and we specifically exclude from good cause the deliberate anticipation or prolongation of the holiday." (Transcript pp. 57 and 58) As we have seen before, the organizations did not obtain their request that a regularly assigned employe be excused for good cause from working his workdays immediately preceding and following the holiday without losing his holiday pay. The existing requirements for regularly assigned em ployes were recommended to be retained with only slight change so that regularly assigned employes not assigned to work would not be penalized. Emergency Board No. 130 considered the holiday pay question at some length in its report to the president dated June 8, 1960. On pages 55 and 56 it analyzed the positions of the parties and the facts concerning eligibility and qualifications for regularly assigned employes as follows: "The evidence presented on inter-industry comparison regarding requirements for work on the day before and the day following a holiday shows that a majority of the contracts require work on either both or at least one of these days. The most common provision requires work on both the scheduled work day before, and the scheduled work day following the holiday. The same provision is contained in the agreements with the Organizations. The purpose of the provision is to prevent an employe from extending the holiday by an unauthorized absence. The same purpose would be served, however, if the employe were deprived of holiday pay if he failed to report for work on the day before a holiday, or the day following a holiday, having been scheduled to work either one or both of such days. This practice would prevent an otherwise eligible employe from being deprived of holiday pay because he was either deliberately or inadvertently not scheduled to work the day before or the day following the holiday. As previously stated, the Board does not propose to write rules, but leaves this task to the parties. Any such rules should provide that an employe must be ready, willing, and able to work on the day before and the day following a holiday in order to qualify for holiday pay. Thus, employes scheduled to work who have quit, been discharged, are on sick leave, or are absent for any other reason should not qualify." On pages 27 and 28 of its report to the president, emergency board No. 130 stated its "conclusions" concerning eligibility and qualifications for regularly assigned employes as follows: "The Board feels that there is no good cause for denying holiday pay to any employe because he did not perform work on the work day preceding and the work day following a holiday, when the employe would otherwise have qualified for holiday pay but was not assigned work on such work days. The Board proposes, without enlarging the area of excused absences on those days, that employes who have complied with all requirements for holiday pay, including those requirements recommended by this Board, and who are available for work on both such days, but are not assigned work on either or both, should be eligible for holiday pay in the future." It is clear from the above quoted discussion in the report of presidential emergency board No. 130 that regularly assigned employes were to continue to qualify for holiday pay only if they were "ready, willing, and able" to work on the workdays immediately preceding and following the holiday. Since the claimant was not "ready, willing, and able" to work on January 2, 1962, he did not qualify for holiday pay for New Year's Day, January 1, 1962. |