Award No. 1520
Docket No. 1436
2-CRI&P-MA-'52
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Machinists)
CHICAGO, ROCK ISLAND AND PACIFIC
RAILROAD COMPANY
DISPUTE: CLAIM
OF EMPLOYES: 1. That under the current agreement the carrier improperly compensated Machinist Helper Leo McNulty at
the helpers' rate of pay for each day of his ten (10) day earned vacation
period beginning March 24, 1950.
2. That accordingly the carrier be ordered to additionally compensate
the aforementioned employe the difference between the helpers' rate of pay
and machinist rate of pay for each day of his ten (10) day earned vacation
period.
EMPLOYES' STATEMENT OF
FACTS: There is in existence on this
property a machinist craft promotional agreement which provides for the
advancement of machinist helpers to machinists during which period of
advancement the helpers will retain and continue to accumulate seniority
as helpers but will not establish seniority as machinists but will be paid not
less than the minimum rate paid machinists.
Under this promotional agreement Machinist Helper Leo McNulty, hereinafter referred to as the claimant, was advanced to a machinist and demoted
back to his helper classification as follows:
"TO FROM POSITION
10-14-42 1-17-46 Machinist
1-18-46 12-27-49 Machinist Helper
12-28-49 3-20-50 Machinist
3-21-50 4-25-50 Machinist Helper
4-26-50 5-31-50 Machinist
6- 1-50 6- 7-50 Machinist Helper
6- 8-50 10-15-50 Machinist
10-16-50 2-12-51 Machinist Helper
2-13-51 To present date Machinist"
It will be noted that the claimant was advanced to a machinist during
the period December 28, 1949 through March 21, 1950,
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Claimant McNulty would have remained at work as helper if he had not
gone on vacation.
Mr. Davis says further on page 608:
"We maintain that an employe taking his vacation while regularly working is entitled to be paid while on vacation at the rate of
the
job he is working when he takes his vacation." (Emphasis ours).
Claimant was and had been working on his regular position of helper at the
time he took his vacation.
Again in this same vein, Mr. Davis says, on page 609:
"I agree, as'I said in my statement here, that he is to be paid
on the basis of the regular job
he is occupying or holding at the
time he goes on his vacation." (Emphasis ours).
Claimant was occupying or holding a regular job as helper.
These statements further substantiate this carrier's position in this
dispute.
Board Three, in Award 5390, decided a similar dispute and reviewed
Referee Morse's interpretation of Section 7(a) of the vacation agreement.
In the opinion of the Board, they held:
"An employe cannot be actually working a position and be on
vacation at the same time. In view of the referee's failure to accept
the Carrier's suggestion that the language `and which he would have
occupied during his vacation period had he not gone on vacation,'
it is clear that the interpretation in question considers the controlling
rate to be that of the position occupied immediately preceding the
vacation." (Emphasis ours).
In conjunction with the vacation agreement of December 17, 1941, several
interpretations were agreed to dated June 10, 1942. Among these is the
interpretation of Article 7(a) which reads:
"Article 7(a) provides:
`An employee having a regular assignment will be paid
while on vacation the daily compensation paid by the carrier
for such assignment.'
This contemplates that an employee having a regular 'assignment
will not be any better or worse off, while on vacation, as to the daily
compensation paid by the carrier than if he had remained at work
on such assignment, this not to include casual or unassigned overtime or amounts received from others than the employing carrier."
The terms of this interpretation seem to be very fair and as applied to
the instant dispute show that the claimant was paid his proper wage while
on vacation. He received the daily compensation he would have received had
he remained at work on his assignment and he was neither better nor worse
off while on vacation.
We petition the Board on the basis of the facts we have presented to
deny the claim.
FINDINGS:
The Second Division of the Adjustment Board, upon the
whole record and all the evidence, find that:
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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.
The parties to said dispute were given due notice of hearing thereon.
The record indicates that the claimant was displaced by a machinist
and he was returned to the helper ranks in accordance with the promotional
agreement in effect on the property.
There is a question as to whether he should have been permitted to
select as a senior helper a more favorable date for his vacation.
This should have been adjusted on the property.
We believe the issue can be resolved more satisfactorily between the
parties themselves.
AWARD
Case remanded in accordance with the above findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 6th day of February, 1952.