Mr. Lee, having been awarded a full annuity, effective October 17, 1953, had no employe status with the carrier in 1954 so as to entitle him to three weeks' vacation in 1954 as provided by the Aug. 21, 1954 vacation agreement, effective January 1, 1954. Mr. Lee is no more entitled to three weeks' vacation than is any employe who retired in 1953 and received his vacation pay in lieu of 1954 vacation upon retirement.

The organization has argued that Mr. Lee had employe status in 1954 because of certain premiums which he paid on a group insurance policy and hospital association dues. It is our position that neither of these actions constitutes or creates an employment relationship so as to increase the vacation benefits of a retired employe.

The organization has also argued that a leave of absence granted Mr. Lee in 1953 extended over into 1954, thus giving Lee employment rights and entitling him to three week's vacation in that year. Again we refer to action by the Railroad Retirement Board in which sick benefits paid in 1953 were halted in October of that year and pension payments made after that date. Any payments by the Retirement Board in 1954 were pension payments which any person having employment status is not eligible to receive.

Thus, the carrier's position that Lee performed no service and had no employment relationship during 1954 so as to make him eligible for 3 weeks' vacation is supported by action by the Railroad Retirement Board.

Having full annuity pensioner status, effective October 17, 1953, Mr. Lee consequently had no employe status subsequent to that date. The vacation pay allowed Mr. Lee on that date was according to the terms of the 1941 vacation agreement and practice in effect on this property at that time. The 1954 agreement, effective January 1, 1954 cannot be interpreted in any manner so as to cover employes who had no employment status on January 1, 1954.

We respectfully request your Board to deny this claim.

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.

The parties to said dispute were given due notice of hearing thereon.

This claim is being made on behalf of retired Boilermaker B. V. Lee. It is claimed that carrier erred when it paid claimant for only ten (10) days' vacation pay for 1954 when, under the agreement dated August 21, 1954

which revised certain vacation agreement provisions effective January 1, 1954, he was entitled to fifteen (15) days.

Claimant had been in the employment of the carrier since 1923, working at its Armourdale Shops in Kansas City, Kansas. He was, at the time he retired on disability annuity, sixty-one (61) years of age. On April 24, 1953 claimant was injured in an accident which occurred while he was in service. Although the injuries suffered were disabling he worked off and on until October 16, 1953, working one hundred and thirty-six (136) days in 1953. In April of 1954 he applied for a full retirement annuity, retroactive to October 16, 1953, based on a claim of total disability which he had suffered as a result of injuries received in the accident he had on April 24, 1953. This was permissible under the provisions of Section 2 (a), subsection 4 (c) of The Railroad Retirement Act. He was, based on his application, granted a full retirement annuity effective as of October 17, 1953.

Article I-Vacations-Section 1 (c) of the agreement dated August 21, 1954 makes the following conditions a prerequisite to the right to receive for the calendar year of 1954 an annual vacation of fifteen (15) consecutive work days with pay:

(1) that he must be an employe covered by the agreement,

(2) that he has rendered compensated service on not less than 133 days during the preceding calendar year, and

(3) that he has fifteen (15) or more years of continuous service within the terms as therein set forth.

The evidence is without dispute that claimant had the latter two provided he can bring himself within the first. In this respect we think his retirement effective as of October 17, 1953. (See Award 1588 of this Division.) Whether or not he was an employe covered by the agreement depends on the provisions of the Railroad Retirement Act relating thereto.

The Act defines "The term 'employe"' as meaning "any individual who is in the employment relation to one or more employers." "Definitions" section 1, subsection (b). It then goes on to provide, under a factual situation such as here presented, as follows: "If after cessation of his disability annuity the employe will have acquired additional years of service, such additional years of service may be credited to him with the same effect as if no annuity had previously been awarded to him." Section 2, subdivision 5 of subsection (a).

And, further, that: "An annuity shall be paid only if the applicant shall have relinquished such rights as he may have to return to the service of an employer and of the person by whom he was last employed; but this requirement shall not apply to the individuals mentioned in subdivision 4 and subdivision 5 of subsection (a) prior to attaining age sixty-five." Section 2, subsection (b).

We think, because these rights were reserved to claimant, that he was, up until he resigned in September 1954, an employe covered y the parties' agreement and entitled to a fifteen (15) day vacation with pay in 1954. Since carrier has only paid for ten (10) days, the claim here made should be allowed.

AWARD