Award No. 2245
Docket No. 2120
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when the award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 121, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Carmen)
THE TEXAS AND PACIFIC RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
That in accordance with the applicable agreements the Carrier be
ordered to compensate the widow of A. A. Harkrider, deceased
Carman Helper, in an amount of money equivalent to fifteen (15)
days' vacation pay.
EMPLOYES' STATEMENT OF FACTS: A. A. Harkrider was employed
by the Texas and Pacific Railway Company, hereinafter referred to as the
carrier, on August 13, 1931, at Longview, Texas. He was in the continuous
employment of the carrier from August 13, 1931, until his death on December
22, 1953.
Prior to his death on December 22, 1953, he had qualified for a vacation
in the year 1954 by rendering compensated service of not less than one hundred
thirty-three (133) days during the preceding calendar year of 1953.
The carrier has declined to pay the widow of A. A. Harkrider the
allowance for such vacation for which he qualified in the year of his death.
This dispute has been handled with the carrier up to and including the
highest officer so designated by the carrier, with the result that he has
declined to adjust it.
The agreement effective September 1, 1949, as it has been subsequently
amended, is controlling.
POSITION OF EMPLOYES: The employes submit that deceased Carman
Helper Harkrider qualified by his years of service, for a vacation of fifteen
(15) days in the year 1954 in accordance with Article I Section I (c) of the
Agreement of August 21, 1954, reading:
"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
[3727
2245-10
381
Neither Hr. Harkrider nor Mrs. Harkrider were employes in 1954, so the
agreement did not
purport to apply to either of them.
The agreement said:
"Effective with the year 1954, . . . if an employe . . . dies before
receiving such vacation . , payment . . . for such vacation . . .
shall be made to his surviving widow."
Mr. Harkrider did not die in 1954. He died in 1953.
If the agreement had intended to relate to deceased former employes,
it could have said so. It did not say so. It did not say "has died prior to the
effective date of this agreement." Instead, the agreement said that it did not
go into effect until 1954, and it said "if an employe dies."
Mr. Harkrider could not meet the requirement of the rule, because he
was not an employe in 1954, and he did not die during or after .1954.
. TlmveforP,
that.
?.greertent did not impose on the carrie any o l~,"^
to pay any vacation allowance of any ki:.d to Mrs. 'Fhdxktld" ° ·' $
This makes it unnecessary to consider how much vacation allowance
Mrs. Harkrider would have been entitled to collect if she were entitled to
collect any. It is pertinent to point out in passing, however, that, again the
agreement says:
"Effective with the calendar year 1954, an annual vacation . .
will be granted to each employe covered by this agreement . . ."
Mr. Harkrider never was an employe covered by that agreement,
use his employe relationship ceased to exist in 1953. No vacation under
agreement was or could have been granted to him effective with the
loom
1954.
,,jj ,`z31'herefore, this claim is obviously not supported by any agreement and
_~ d have to be denied if presented to a probate court or some tribunal
5 ' ` J
mpetent jurisdiction.
i!
FINDINGS: The Second Division of the Adjustment Board, upon the
Whole record and all the evidence, finds that:
Eh
The carrier or carriers and the employe or employes involved in this
` ute are respectively carrier and employe within the meaning of the
1'lway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
f
*Volved herein.
The parties to said dispute were given due notice of hearing thereon.
This claim is made on behalf of the widow of Carman Helper A. A.,
r
ider, deceased. It asks that she be paid for fifteen (15) days in lieu
~e vacation which it is claimed the deceased had, prior to his death,
d for 1954.
Decedent was employed by carrier as a carman helper at Longview,
1 s. Prior to his death on December 22, 1953 he had been in the continuous
Vs.
of carrier since August 13, 1931. At the time of his death he
,. rendered carrier not less than one hundred and thirty-three (133) days
·of compensated service in 1953 and had more than fifteen (15) years of
continuous service with the carrier.
Carrier contends the claim is not properly here for our consideration
ibecause G. R. French, director of personnel, was not notified within sixty
i
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382
(60) days thereafter that his final decision of April 27, 1955, denying the
claim, was rejected. G. R. French was the highest officer of carrier directed
to handle such disputes and this appeal was taken from his final decision of
April 27, 1955. It was instituted here by letter dated December 13, 1955 or
within nine (9) months after French's decision as required by Section 1(c)
of Article V of the Agreement of August 21, 1954. This question has been
ruled on twice by this Division and both awards are contrary to carrier's
contention. See Awards 2135 and 2211. As stated in Award 2135:
"We think the requirements of Paragraph 1(b) of Article V
of the National Agreement of August 21, 1954, relate to the handling
of disputes on the property and the sixty (60) day notice of rejection
therein required is a prerequiste to appealing from one officer to the
next up to the highest officer designated for that purpose; whereas,
the provision of Paragraph 1(c) of Article V relates to appeals from
the decision of the highest officer designated by the carrier to handle
disputes to the several Divisions of the National Railroad Adjustment
ation nine (9) months are allowed and the
jection is,,!
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,#,~ ~claim um1 z,s~`· ` ` bj~'1 ~~
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ent of uus; 21, 1954.
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provides:
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"Effective with the year 1954, it is understood that if an employe `i`)
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 will be observed that the language of this rule relates to vacatio
for both the year in which the employe dies as well as the year subseque4,thereto, provided he has properly qualified therefor. Since Harkrider performed the necessary qualifying service in 1953, before his death, for
vacation for 1954 to which Section 1(c) of Article I of the August 21, 19L
Agreement relates and since he never received the benefits thereof, we thin
Section 5 of Article I expressly provides his widow is entitled thereto.
An identical situation was present in our Docket 2026 on which ours
Award 2166 is based. What is therein said and held is applicable here.
We find the claim should be allowed for fifteen (15) days' pay as is
provided for by Section 1(c) of Article I of the Agreement of August 21;
1954.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BO
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 17th day of September, 1956.