Award No. 5132 Docket No. 4740 2-N&W-CM-'67 NATIONAL RAILROAD ADJUSTMENT BOARD SECOND DIVISION The Second Division consisted of the regular members and in PARTIES TO DISPUTE: SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES' DEPARTMENT, AFL-CIO (Carmen) NORFOLK AND WESTERN RAILWAY COMPANY DISPUTE: CLAIM OF EMPLOYES: 1. That the Carrier violated Article 3 of the August 19, 1960 agreement when they denied holiday pay December 25, 1962 and January 1, 1963 to the Claimant Car Repairer E. T. Musselman employed at Roanoke East End Shops, Roanoke, Virginia. 2. That accordingly the Carrier be ordered to additionally compensate the aforesaid Claimant 8 hours pay for each of the holidays, namely December 25, 1962 and January 1, 1963. EMPLOYES' STATEMENT OF FACTS: The above mentioned employe, hereinafter referred to as claimant, was employed by the Norfolk and Western Railway Company, hereinafter referred to as the carrier, at carrier's shops located at Roanoke, Virginia. Claimant was regularly assigned and working at carrier's shop, Roanoke, Virginia. On or about December 17, 1962, carrier posted notice on bulletin board furloughing a number of men at the close of business December 21, 1962, claimant was recalled to his regular assignment on January 2, 1963. This dispute was handled with carrier officials designated to handle such cases who all declined to adjust same. The agreement effective September 1, 1949, as subsequently amended is controlling. POSITION OF EMPLOYES: It is submitted that under language of article 3, section 1 and 3 of the August 19, 1960 agreement. Section 1 reads, "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 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; o NOTE: Available' as used in subsection (ii) above is inter preted by the parties to mean that an employe is avail- The claimants contend that in order to decide the status of employes for holiday pay who are furloughed prior to a holiday, as here involved, one must look to the record to decide what positions the employes were in when furloughed. In the instant case we find that the claimant was regularly assigned prior to furlough at the election of the carrier, and accordingly, the only question to be here decided is whether or not the claimant qualified under the "Note" interpreting the word "available" in article III of the August 19, 1960 agreement. Award 2173, 2298, and 2557 of this division deal with employes who were in the group of regularly assigned employes. Awards 2169, 2297 and 2299 deal with employes who were furloughed employes called in to fill positions of absent employes. Regularly assigned employes, when furloughed, would not be concerned with the qualification of the 11 or more of the 30 calendar days and the seniority status of at least 60 calendar days, as it is evident from a reading of the record, as well as the history of the dispute that an employe's status is determined for holiday pay by the position held by him before being furloughed. The record shows that the carrier did not call the claimant for service on the dates in question. Since claimant did not lay off of his own accord and since he was not called, the employes' claim is subject to be upheld, in its entirety, and your Honorable Board is requested to so find. All matters herein referred to in support of the employes' position have been the subject of correspondence and discussion with management. CARRIER'S STATEMENT OF FACTS: The claimant was employed at Roanoke Shops, Roanoke, Virginia as a Car Repairer. The claimant became ill in October, 1962, and was absent account illness beginning October 9, 1962. He did not return to work until December 10, 1962. He performed service and was compensated for same on December 10, 11, 12, 13, 14, 17, 18, 19, 20 and 21, 1962, a total of ten (10) days. He was furloughed at the close of business on December 21, 1962, and recalled from furlough effective January 2, 1963. The claimant made himself available for furloughed relief work during this furlough period by making application for relief work, but since no relief work was available, he did not perform service during the furlough period. During the thirty (30) calendar days immediately preceding each of the two holidays in question, December 25, 1962 and January 1, 1963, the claimant performed service on, and was paid compensation for only ten (10) days. This claim was initiated by Local Chairman C. L. Allison on January 23, 1963, by letter addressed to Foreman J. R. Gilmore, alleging violation of article 3, section 3, of the agreement of August 19, 1960. Foreman J. R. Gilmore declined the claim on March 22, 1963, stating the claimant did not meet the eligibility and qualification requirements set forth in section 1 of article III of the August 19, 1960 Non-operating Agreement. This claim was progressed through the usual channels, with the carrier, after several conferences, denying it at each level, until it reached General Chairman C. C. Bevins for his handling. General Chairman Bevins progressed the claim to me by letter dated October 24, 1963, enclosing his letter of July 25, 1963, to Superintendent Roanoke Shops, J. A. Gearhart. As the carrier's highest officer designated to handle shop craft disputes, a conference was held with General Chairman Bevins on November 27, 1963, and I replied to him on December 20, 1963, declining this claim. An agreement which covers claimant E. T. Musselman between the carrier and the employes represented by System Federation No. 16 of the Railway Employes' Department, AFL-CIO, which includes Carmen of System Federation No. 16, bearing an effective date of September 1, 1949, is on file with your board and by reference is made a part hereof. POSITION OF CARRIER: The Claimant, E. T. Musselman, was furloughed at the close of business December 21, 1962, and recalled January 2, 1963. For the purpose of application of article III - holidays- of the August 19, 1960, non-operating agreement, this placed the claimant in the category of "other than regularly assigned employes" as referred to in article III of this agreement, during the furlough period. The employes have not denied nor taken exception to the fact, either in conference or by correspondence, that the claimant was in a furloughed status during the period in question. In the initial declination of this claim, the employes were advised the claimant was furloughed during this period and the same has been explained at each succeeding level as the claim was progressed. It was pointed out to General Chairman Bevins in conference on November 27, 1963, and in my letter to him of December 20, 1963, that the claimant realized he was in a furloughed status since he made application for furloughed relief work. The employes have not denied that the claimant was furloughed. The employes are saying that all the claimant has to do to qualify for holiday pay is to: 1. show that he has a seniority date in excess of 60 calendar days preceding the holiday, and 2. he must be available for service and not lay off of his own accord nor fail to respond to a call pursuant to the rules of the applicable agreement. This is a new position taken by the employes on article III of the August 19, 1960 agreement on this property, and it is the first time any employe or group of employes have attempted to disregard the basic requirement in section 1 concerning the minimum of eleven (11) days compensated service in the thirty (30) days immediately preceding the holiday. The pertinent part of section 1 which the employes have disregarded is as follows: "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 above identified 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 a seniority date for at least 60 calendar days, etc. (Emphasis ours.) Previous disputes on this property over interpretation of the August 19, 1960 Agreement have revolved around whether or not an employe must "sign up" for furloughed relief work in order to be considered "available”. That is not the issue in this dispute. Other employes who were furloughed during the same period, and who made application for furloughed relief work, were granted holiday pay, but they performed service on 11 or more of the 30 calendar days immediately preceding the holiday and were paid compensation for said service. |