Award No. 2166
Docket No. 2026
2-MP-CM-'56
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in ad
dition Referee Edward F. Carter when the award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Carmen)
MISSOURI PACIFIC RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
That in accordance with the
applicable agreements the Carrier be ordered to make payment of the allowance for fifteen (15) days' vacation to the widow of deceased Carman J. P.
Crowley.
EMPLOYES' STATEMENT OF FACTS:
J. P. Crowley, Carman, North
Little Rock, Arkansas, was employed by the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, on July 13, 1929. He was in the
continuous employment of the carrier up to the time of his death on November 18, 1953.
Prior to his death Mr. Crowley had qualified for a vacation in the year
1954 by rendering compensated service of not less than one hundred thirtythree (133) days during the preceding calendar year of 1953. Mr. Crowley
had further rendered compensated service in fifteen (15) or more qualifying
years for vacation purposes.
The widow of Mr. Crowley was denied the vacation pay allowance of
fifteen (15) days as per copy of letter, submitted herewith and identified as
Exhibit A, addressed to General Chairman Bond by carrier's Mr. Christy
under date of January 17, 1955.
This dispute has been handled with the carrier up to and including the
highest
officer so
designated by the company, with the result that he has
declined to adjust it.
The agreements effective September 1, 1949, and the vacation agreement
of December 17, 1941, as they have been subsequently amended, are controlling.
POSITION OF EMPLOYES:
Carman J. P. Crowley qualified for three
(3) weeks' vacation (15-days) and his widow was denied payment in violation
of Article VTII, Section 5 of the agreement of August 21, 1954, reading:
13 587
2166-8
365
"(c) Effective with the calendar year 1954, an annual vacation of fifteen (15) consecutive work days with pay will be granted
to each employe covered by this Agreement who renders compensated service on not less than 133 days during the preceding calendar
year and who has fifteen or more years of continuous service and
who, during such period of continuous service renders compensated
service on not less than 133 days (151 days in 1949 and 160 days
in each of such years prior to 1949) in each of fifteen (15) of
such years not necessarily consecutive."
Note that again the rule is made effective with the year 1954. The rule
is applicable "to each employe covered by this Agreement." To be covered
by the agreement, the person making the claim must have been an employe on
or after the date the agreement became effective. Mr. Crowley obviously was
not covered by the agreement since he died the year before. His widow is not
covered by the agreement since she is not an "employe" to whom the agreement is applicable. It is clear that in no case would the widow be entitled
to payment for a third week of vacation. The fact that the employes have
asked for payment for three weeks' vacation even though the claim was
originally made for only two weeks' vacation shows their confusion in attempting to support this claim.
We call your Board's attention to the fact that none of the provisions
of the agreement are made retroactive to a date earlier than January 1,
1954. Some of the provisions are made retroactive but not to a date as
early as January 1. For example, Article II is retroactive to May 1, 1954.
Other provisions have no retroactive effect.
Th,
eement is consistent in
that stone of the agreement is
apo.
eable to
ai ` '; Vice
occur prior to
January 1, 1954. We draw the conclusions-
,$,et
t. the parties
to the agreement did not intend Section 5
of.
,-
n
case
of an employe who died prior to January 1, 1954." " 1
"'.` '-
In conclusion, we wish to emphasize again that this claim, wl#eA ' ~"~'>
been progressed by the carmen's organization, was not filed on behalf of an » "" '
employe but on behalf of Mrs. J. P. Crowley, the widow of a carman formerly
employed by the Missouri Pacific. If Mrs. Crowley has any claim against
the carrier, it must be by virtue of the employment contract that existed
between the carrier and Mr. Crowley. Since Mr. Crowley died November
18, 1953, terminating the contract relationship, any valid claim must be based
on the contract as it existed on or before that date. As pointed out above,
Article 8 of the vacation agreement prior to the amendment effective with
the year 1954 specifically barred a claim of this nature. Since the 1954
amendment to the vacation agreement became effective after the death of
Mr. Crowley, it is not applicable to this claim. The carrier submits that this
claim is not supported by the agreement and therefore must be denied.
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.
J. P. Crowley entered the employ of the carrier on July 13, 1929, and
continued in such employment until the time of his death on November 18,
1953. Prior to his death, claimant had qualified for a vacation for 1954
1
by rendering compensated service in excess of one hundred and thirty-three
(133) days in 1953. He had been in the employ of carrier in excess of the
required fifteen (15) years to qualify for a vacation of fifteen (15) days.
21
s
6-9
366
The widow of Crowley claims fifteen (15) days' pay under the provisions of
Article 1, Section 5, Agreement of August 21, 1954, which provides: ,
"Effective with the year 1954, it is understood that if an
employ e who performed the necessary qualifying service in the year
prior to the year of his death, or in the year of his death, or both,
dies before receiving such vacation, or vacations, or payment in
lieu thereof, payment of the allowance for such vacation or vacations shall be made to his surviving widow, or in the absence of a
surviving widow, on behalf of a dependent minor child or children,
if any."
It is clear that Crowley qualified for a fifteen (15) day vacation und'
Article 1, Section 1(c), Agreement of August 21, 1954. The retroactiv
feature of the foregoing rule applies to all vacations for 1954. Award 215 .
It is shown that Crowley performed the necessary qualifying service in 19 ,
the year of his death, for a vacation for 1954. He died before receiving
Under the express terms of Article 1, Section 5, Agreement of August,
1954, the widow has a valid claim for fifteen (15) days' pay in lieu of
fifteen (15) days vacation for 1954 for which he qualified.
The contention that the claim is invalid because Crowley died before
the August 21, 1954 Agreement was made, has no merit. The applicable
provisions of that agreement were made tQ_ apply to all vacations for
the
calendar year 1954, not just a part of thgm. The agreeme , case. f
the death of an employe, conte tes pav~A0
for-
ca~ll6E
~,
f
the year previous to t
~I
thi,**a=is.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 5th day of July, 1956.