The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when the award was rendered.
EMPLOYES' STATEMENT OF FACTS: The Boston and Maine Railroad, hereinafter referred to as the carrier, maintains a facility at Nashua, New Hampshire, whereat they employ Carman George F. Carroll, hereinafter referred to as the claimant. The claimant requested and was assigned a vacation period from July 1, through July 15, 1954, rest days and holiday excepted. The claimant was regularly assigned a work week of Monday through Friday with rest days of Saturday and Sunday. The claimant took the ten (10) consecutive work days vacation as assigned and was compensated for ten (10) consecutive work days vacation. Subsequent to the August 21, 1954 agreement, the claimant requested five (5) additional consecutive work days vacation to which he was entitled from December 27, through December 31, 1954. The carrier assigned him the additional vacation period of December 28, through December 31, 1954 consisting of four (4) days and paid him for July 5, 1954.
The dispute was handled with carrier officials designated to handle such affairs, who all declined to adjust the matter.
The agreement effective April 1, 1937, as subsequently amended is controlling.
POSITION OF EMPLOYES: It is submitted that under the provisions of the current agreement, with particular reference to Article I-Section 1, reading as following:
This claim is unfounded, unsupported and contrary to the August 21, 1954 agreement which specifically spells out how to handle this dispute. Therefore it must be denied. To sustain the petitioner's position in this claim would be exactly contrary to the clear wording of the August 21, 1954 agreement-Article I, Section 3.
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.
Carman George F. Carroll claims he was denied one day of his 15 days' vacation with pay for 1954. In lieu thereof he asks for eight hours of pay applicable to his job at the straight time rate.
Claimant worked for carrier at Nashua, New Hampshire. He was regularly assigned a work week of Monday through Friday with rest days of Saturday and Sunday. Claimant requested and was given a vacation for 1954 during the period from Thursday, July 1st, to Thursday, July 15, 1954, both dates included but rest days and holidays excepted. July 4th fell on Sunday in 1954 and consequently Monday, the day following, was observed in place thereof. The work days constituting claimants then 10 day earned vacation for 1954 were July 1, 2, 6, 7, 8, 9, 12, 13, 14 and 15. July 3, 4, 10 and 11, 1954 being Saturdays and Sundays were his rest days and Monday, July 5tb. was a holiday. At that time holidays falling on the work days of an employ e's work week were not considered work days for the purpose of determining the days of an employe's vacation under the National Vacation Agreement.
On August 21, 1954 the parties entered into an agreement which, in claimant's situation because of the length of his continuous service with the carrier, increased the length of his earned vacation for 1954 from 10 to 15 consecutive work days with pay. In lieu thereof carrier gave him four additional days with pay in December of 1954 and paid him for Monday, July 5, 1954. It is claimants contention he should have been given five additional days.
It should first be stated that the factual situation herein presented is not comparable to that existing in Docket 1955 on which our Award 2124 is based. Therein the parties fixed the date when the vacations would begin as July 6, 1954 and we held the retroactive effect given the provisions of the agreement of August 21, 1954 did not have the effect of destroying it. In such a situation, if here presented, the following language of Article V of the Vacation Agreement of December 17, 1941 would apply. It provides, in this respect, as follows:
We think there are three provisions of the August 21, 1954 Agreement which control the situation here presented. Insofar as the language thereof is here material, it is as follows:
It will be observed that the provisions relating to an increase in the length of vacations for certain employes and for holiday pay are retroactive in their application, the increase in the length of vacations applying to all vacations earned for 1954 and holiday pay to May 1, 1954. Each of these provisions are of equal importance and, in solving any problem relating thereto, must all be considered accordingly.
When Article II, Section 1 became effective, it required carrier to go back and pay all employes entitled thereto for Monday, May 31st, 1954, and Monday, July 5, 1954, since both Memorial Day and the Fourth of July in 1954 fell on Sunday, thus causing the Monday following to be observed as such holiday. The foregoing included claimant and he was accordingly paid for Monday, July 5, 1954. By the provisions of Article I, Section 3 such day was then considered "a work day of the period for which the employe is entitled to vacation." The effect thereof was to give claimant a vacation in July of eleven consecutive work days with pay. Consequently, he was only entitled to four more. These carrier gave him.
It may be that some employes with only an earned vacation of either five or ten consecutive work days for 1954 will have obtained a one day advantage because of this change in regard to holidays falling on a work day of the work week of regularly assigned employes but that fact does not change the situation. Such conditions are very apt to happen when provisions of an agreement are made retroactive in their application.
We think claimant had a vacation for 1954 of fifteen work days with pay and, in view thereof, is not entitled to the additional days' pay for which he here makes a claim.