ploye applying therefor under the provisions of paragraph (c) of this rule will be allowed to fill such temporary vacancy for the remainder of its term, and the vacancy so created will be filled by the recalled furloughed employe. Upon the completion of such temporary service, the regularly assigned employe will return to the position from which taken." "RULE 9. (a) Available furloughed employes who have made written application for service elsewhere will be used at other points when men are needed, in preference to hiring new men. Such transfers will be made without expense to the Company, other than the furnishing of necessary transportation. In the application of this rule, selection of available furloughed employes shall be made from those located nearest to the point where additional employes are needed, subject to the provisions of paragraph (b) of this rule. Employes furloughed at one point and accepting service with the Company under this schedule at another point will retain their home point seniority, subject to the provisions of Rule 7. (b) An employe laid off in reduction of force desiring to secure employment under this rule, shall notify his foreman in writing at the time laid off." Rule 6(d) only allows a furloughed employe to request to be considered for specific temporary vacancies, and does not require that he be so used nor that he actually return from furlough to accept such work when it is offered. Rule 1 only provides for transfer to other points for vacancies. Neither rule obligates the employe to maintain the state of availability contemplated to qualify for holiday pay under the second paragraph of Section 3 of the holiday rule. However, since the claimants allege that they were ready, willing and able to perform work on August 31 and September 3 and 4, 1962, it would be logical to expect that they would have submitted a request for temporary vacancies under Rule 6(d) and for transfer to another point under rule 9, to their foreman at the time they were furloughed. No such requests were submitted. Therefore, it is obvious that the claimants were neither available pursuant to the rules of the applicable agreement, nor were they in fact ready, willing and able to work. THE CLAIM OF THE ORGANIZATION, THEREFORE, IS 1. Neither the organizations which demanded expansion of the August 21, 1954 holiday provision, nor emergency board No. 130 which considered those demands, indicated any intent to provide bonus holiday pay for employes who were furloughed prior to a holiday for an indefinite period, for reasons other than to avoid holiday pay. 2. Emergency Board No. 130 recognized that the parties had not abandoned the doctrine that holiday pay is for the purpose of maintaining takehome pay; and, granting holiday pay to the claimant would violate that doctrine. 3. Many of the claimants did not satisfy one or more of the preliminary requirements contained in article III, section 1 of the August 19, 1960 national agreement applicable to "other than regularly assigned employes," because compensation for service was not credited to 11 of the 30 calendar days immediately preceding the holiday, and some failed to receive 11 days compensation of any type during that period. 4. Some of the claimants received vacation pay for the holiday. 5. None of the claimants satisfied either of the qualifications contained in article III, section 3 of the August 19, 1960 national agreement applicable to "other than regularly assigned employes," because they received no compensation for service paid by the carrier on the workday preceding or the workday following the holiday, and they were not "available" on those days "pursuant to the rules of the applicable agreement." 6. The allegation of the claimants that they were in fact ready, willing and able to perform service on the workday preceding and the workday following the holiday is of no probative value as evidence; is irrelevant because an employe must be "available" for service pursuant to rules of some agreement which actually provides for such availability for service and obligates the employe to respond; and because the claimants did not indicate any willingness or readiness to perform service under Rule 6(d) or to transfer to another point under rule 9(a). For the foregoing reasons, the carrier respectfully requests that the claims of the employes be denied. All of the evidence and data contained herein has been presented to the duly authorized representative of the employes. FINDINGS: The Second 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 employe 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. The issues herein in regard to this September 3, 1962 Labor Day holiday pay dispute are: (a) did a number of the Claimants herein fail to have 11 or more "compensated for service" days credited in the 30 calendar days immediately preceding the holiday; (b) are the Claimants, who were on vacation on the holiday entitled to receive said holiday pay, and (c) were Claimants "available for service" on the workday preceding and following the holiday in question. In regard to the first issue of meeting the requirement of the 2nd paragraph of Section 1, Article III of '60 Agreement: ". . . provided (1) compensation for service paid him by Carrier is credited to 11 or more of the 30 calendar days immediately preceding the holiday . . .", the Carrier contends that 13 named Claimants listed on page 13 of Carrier's submission failed to have any type of compensation credited and that 99 Claimants listed on page 13 through 17 of Carrier's submission, had less than 11 days of service and also received vacation pay during said 30 day period, which vacation pay Carrier asserts is not "compensation for service" credited to 11 or more days as required by said Section 1, Article III of '60 Agreement. The Organization's reply to Carrier's contention that 13 named Claimants failed to have any type of "compensation for service" credited in the 30 day period preceding the holiday is that said contention was not raised on the property and was for the first time raised in their initial submission to this Board, and therefore the Organization concludes that this Division cannot consider such a contention as to the failure of the 13 named claimants to have the necessary minimum compensated days within the 30 day period. We agree with the Organization that this Division cannot consider contentions or charges which were not made during the handling on the property. This is a well established rule of this Division. Inasmuch as the record does not show that this contention of Carrier was raised on the property, therefore this Division cannot consider the contention of the Carrier that the said 13 Claimants named in their initial submission to this Division did not have any "compensation for service" during the 30 day period preceding the holiday. The Organization also objects to the contention of Carrier being raised for the first time before this Division, in regard to the 99 Claimants listed by Carrier on pages 13 through 18 of their initial submission to this Division, whom Carrier claims did not have 11 or more compensated days within the 30 day period preceding the holiday, although all these claimants had vacation pay during said 30 days period, if counted as "compensated" days, which Carrier denies, would give Claimants the necessary "11 or more compensated days. The Organization bases its objection on the grounds that this contention was not raised on the property and therefore cannot be considered by this Division. A close examination of the records reveals that this contention or charge was nowhere raised on the property, and lacking that evidence, this Division cannot consider such contention and therefore we must reject this contention of Carrier in regard to any of said 99 Claimants lacking the necessary 11 or more required compensated days during the 30 day period prior to the holiday. It also clearly appears from the record that the further contention of Carrier in regard to the 7 Claimants, listed on page 18 of its submission to this Division, being paid vacation pay for said September 3, 1962 holiday and thus Carrier not being liable to pay said 7 Claimants twice for the holiday pay and vacation pay, was not raised on the property by the Carrier, and therefore this Division cannot consider such contention. The issue then remains, were these Claimants "available for service" on the day preceding the holiday in accord with the requirements of 2nd paragraph of Section 3 and the "Note" therein of Article III of the '60 Agree ment. Carrier's position in regard to the "availability" of Claimants is that due to Laborers' Rule 7(e) (and identical Shop Crafts Rule 5(d)) Claimants were not required to respond to a call for service from Carrier for 15 days; also that Rule 4(d) and 6 of Shop Crafts Rules were not complied with by Claimants for failure to request temporary work or transfer to another point and therefore Claimants were not "available for service" within the intent and meaning of applicable provisions of Section 3, Article III of the '60 Agreement. This Division has previously held, that in determining "availability", it is not whether an employe was required to respond to a call. The test for determining "availability" is whether or not Carrier called an employe, such as Claimants herein, for service, and whether such an employe did or did not respond to such a call for service. Further, in regard to contention of Carrier that Rules 4(d) and 6 of the Shop Crafts Agreement are the controlling "rules of the applicable agreement", there is nothing in said Section 3, Article III of '60 Agreement that says said Rules are such, and further there is nothing in said Agreement that requires said Rules to be complied with by an employe in order to be considered "available for service". Therefore, it is the opinion of this Division that Claimants herein were "available for service" within the intent and meaning of Section 3 (ii) and "Note" therein of Section 3, Article III of '60 Agreement, and not having laid off of their own accord and meeting all other requirements of Article III of the '60 Agreement, this claim must be sustained. AWARD Claim sustained. NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: Charles C. McCarthy Executive Secretary Fated at Chicago, Illinois, this 31st day of March, 1967. Keenan Printing Co., Chicago, Ill. Printed in U.S.A. |