The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when the award was rendered.
SYSTEM FEDERATIOIN NO. 95, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Electrical Workers)
EMPLOYES' STATEMENT OF FACTS: Lineman J. D. Sperry, hereinafter referred to as the claimant was employed by the Chicago, Burlington & Quincy Railroad Company, hereinafter referred to as the carrier, as such with a seniority date of September 1, 1948. The claimant worked for the carrier from September 1, 1948 to November 26, 1951, on which date he entered military service. He returned to the service of the carrier on October 27, 1953 from military service. The claimant, in the year 1954, was granted a vacation of five days from April 26 to 30, 1954 which the carrier contends is all that he is entitled to which is confirmed by Mr. W. E. Angier's letter of February 28, 1955.
In the year 1949, the claimant rendered compensated service on not less than 151 days. In the years 1950 and 1951, claimant rendered compensated service on not less than 133 days. The years 1952 and 1953 are counted as qualifying years due to their being in the armed forces which makes the required five years.
A claim was submitted for an additional five days vacation which claim was denied by the carrier officials designated to handle such affairs.
The agreement effective March 1, 1952, as subsequently amended. is controlling.
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.
Carrier contends we should dismiss this claim because it was not handled in the proper manner on the property as required by Section 3, First (i) of the Railway Labor Act, as amended.
The agreement of August 21, 1954, insofar as it relates thereto, provides:
Under this provision an appeal to the next higher representative from a decision rendered by a subordinate official or representative does not automatically constitute notice of rejection by the employe representa~ipe of the decision rendered by such subordinate official or representative. MHowever, the representative to whom the appeal is taken must refuse to consider the claim because of that fact and if he fails to do so and considers it solely on its merits then the failure to give such written notice of rejection to the subordinate official will be considered to have been waive
This claim was filed with carrier on November 24, 1954. It was finally rejected by H. H. Hasselbacher, carrier's superintendent of communications, on January 4, 1955. Appeal was taken therefrom to Staff Officer W. E. Angier, carrier's highest officer designated to handle such disputes. No no e L; was served on Hasselbacher advising him his decision had been rejected. , By letter dated February 28, 1955 Angier denied the claim on its merits and not because of the failure to serve notice on Hasselbacher within sixty (60) days that his decision was being rejected. We think, because of Angier doing so, the requirement to serve such notice was waived by the carrier.
Claimant, Lineman J. D. Sperry, entered the carrier's service on May 28, 1948 and remained actively therein until November 26, 1951, when he entered military service. He returned to duty from military service on October 27, 1953. Claimant had one hundred and eighty-three (183) days of compensated service in 1948, two hundred and eighty-three (283) in 1949, ~,
The foregoing section has three (3) conditions which must exist before an employe is entitled to a ten (10) day vacation. First, he must be an emplove of the carrier covered by. the agreement. That fact is admitted. Second, he must have had at least five or more years of continuous service within the requirements therein set forth. This claimant had by reason of the provisions of Article I, Section 1(g) of the August 21, 1954 agreement. Third, claimant was required to have not less than one hundred and thirty-three (133) days of compensated service during the calendar year 1953. This he