AWARDS 90 - EXTRA YARDMASTER WORKING ON HOLIDAY IS ENTITLED TO HOLIDAY PAY

Public Law Board No. 5051, Award No. 1 (Larney)

"The Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated January 22, 1991, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearing held.

"This Board is in general concurrence with the dicta espoused by Public Law Board No. 3972 in Award No. 4 concerning the common law judicial doctrines of stare decisis and res judicata. At the same time, however, this Board notes that while claims involving the same two parties may, at first blush, involve identical issues, upon closer examination of the fact circumstances it is found there exist sufficient differences between such claims as to distinguish them from one another therefore rendering the doctrines of stare decisis and res judicata inoperative. In so holding, we do not concur in Carrier's position that Award No. 1 of Public Law Board No. 3107 is dispositive of the instant claim as it is our view that Section 6 of Article III has no applicability to the fact circumstances of the instant case. We are persuaded that Section 6 applies only to holidays falling on rest days or during vacations. In this regard, we concur in the rationale set forth in Fourth Division Award No. 3187 with Referee Lieberman presiding wherein that Board held, in pertinent part, the following:

"Further, we find that the provisions of Section 6 of the 1968 Agreement are not applicable to this dispute since that section relates only to holidays falling on rest days or during vacations.

"There has been no showing in the record evidence before this Board that the Christmas holiday in question, claim date of December 25, 1989, fell on either a rest day of Claimant's or during a vacation period of Claimant's. Therefore, we reject Carrier's line of argument that the findings advanced in Award No. 1 of Public Law Board No. 3107 should be affirmed here and deemed dispositive of the instant claim.

"Carrier's argument that the provisions of Article III, particularly Sections 1 and 4, do not provide holiday pay for extra board yardmasters is also rejected on grounds that with respect to the former, Section 1 makes no distinctions between various categories of yardmasters, such as regular assigned yardmasters as opposed to extra board yardmasters, and our view, that with respect to the latter, the holding by the Fourth Division in Award No. 2628 as reaffirmed in Award No. 3265 construing the meaning of Article III, Section 4, was incorrect. With respect to the meaning and intent of Section 1 of Article III, we are in concurrence with the rationale set forth by the Fourth Division in its Award No. 3187 wherein it stated, `Section 1 of Article III does not distinguish among the various categories of yardmasters defined in the Scope Rule but provides that yardmasters as such will all be paid time and one-half for working on a holiday in addition to their regular pay.' With respect to the meaning and intent of Section 4, it is our view, as opposed to the Fourth Division in Awards Nos. 2628 and 3265, that the Section addresses the holding of a regular yardmaster assignment and not the fact one has to be a regular yardmaster in order to be entitled to the holiday pay benefit conferred in Section 1. We believe the key language in support of our view is as follows:

"`... the Carrier shall have the right to blank such position on that day and the yardmaster then holding such assignment [a regular yardmaster assignment] shall be paid for that day on the basis of his regular straight time rate of pay. ...'

"The above quoted language makes no reference to either a regular or extra board yardmaster but does reference the type of assignment that must be worked in order to be entitled to receive holiday pay and that assignment is a regular yardmaster assignment. We are persuaded that if the Parties to the 1967 National Agreement meant to distinguish between regular assigned yardmasters and extra board yardmasters with respect to entitlement of holiday pay for the enumerated eight (8) holidays set forth in Section 1 of the Agreement, they certainly possessed the expertise in the drafting of contract language to easily make that distinction. In this regard, even though we found Section 6 to be inapplicable here, we do find the language of Section 6(c) to be instructive with respect to this latter point. In this section, the Parties did distinguish between extra yardmasters and regularly assigned yardmasters, thus illustrating the point that had they intended to make such a distinction in Sections 1 and 4, they were capable of doing so but, in fact, they made no such distinction. Absent such a distinction in these applicable sections, we are persuaded that the definition of yardmaster as set forth in the Scope Rule must be controlling in any construction of Sections 1 and 4. We find that the pertinent language of the Scope Rule could not be any clearer of more straightforward. The Scope Rule defines the term yardmaster as meaning, 'yardmasters of all grades' making but one exception and that is to `general yardmasters.' Thus, we deduce that Sections 1 and 4 of Article III refer to yardmasters of all grades, which includes extra board yardmasters and excludes only general yardmasters. In so finding, we hold that Claimant was in fact, contractually entitled to receive holiday pay for having worked on Christmas on the claim date of December 25, 1989.

"Accordingly, we rule to sustain the instant claim in its entirety."

Public Law Board No. 5964 Award No. 2 (Peterson) UTU/GTW

"The Organization maintains that pursuant to Section 1 of Article III of the November 29, 1967 National Agreement that the Claimant is entitled to holiday pay at the rate of time and one-half, in addition to his regular pay, for work performed on a contractual holiday, namely, Christmas, December 25, 1995.

There is no question that the Claimant, an extra yardmaster, was called to fill a vacancy and did in fact work as a regular yardmaster on December 25, 1995. However, the Carrier says the fact that the Claimant was worked on a holiday did not have the effect of changing his status as an extra yardmaster for purposes of compensation.

Article III, Section 1, of the November 29, 1967 National Agreement, as cited in pertinent part by the Organization reads as follows:

Section 1.

Effective January 1, 1968, yardmasters shall be paid at the rate of time and one-half for working on any of the following enumerated holidays, in addition to their regular pay:

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Christmas

The Organization maintains that Article 1, Definitions and Duties, of the November 29, 1967 National Agreement, does not differentiate from between the term yardmaster and extra yardmaster, this agreement provision reading:

The term 'yardmaster' as used herein, shall include yardmasters and assistant yardmasters, but shall not include general yardmasters.

It is the contention of the Carrier that paragraph C of Article II of the September 28, 1968 Agreement restricts the amount of compensation to which extra yardmasters, such as the Claimant, are entitled. This agreement provision reads:

The rest day holiday and vacation holiday provided by this Section 6 shall not apply to extra yardmasters, or to regularly assigned yardmasters who may be eligible for holiday pay falling on a rest day or during a vacation period pursuant to other schedule agreements.

The Board is not persuaded by Carrier argument that Article II, paragraph C, of the September 28, 1968 Agreement supersedes Article III, Section 1, of the November 29, 1967 National Agreement as concerns the dispute here at issue. The language of the 1968 Agreement basically provides that 'rest day' and 'vacation' holiday pay shall not apply to extra yardmasters. We find nothing in such rule that may be read as having intended to modify or amend the provisions of the latter rule as concerns the payment of time and one-half compensation, in addition to regular pay, to extra yardmasters who perform yardmaster work on a holiday. If negotiators of the national rules had intended what the Carrier here seeks, it would seem to the Board that such a condition would have been specified in clear and unambiguous language.

The Claimant having held the type of assignment referenced in Article III, Section 1 , of the November 29, 1967 National Agreement, namely, that of a yardmaster, on one of the enumerated holidays, he is entitled to the holiday pay benefit."

"We find nothing in such rule that may be read as having intended to modify or amend the provisions of the latter rule as concerns the payment of time and one-half compensation, in addition to regular pay, to extra yardmasters who perform yardmaster work on a holiday."