SYSTEM FEDERATION No. 30, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
1. The Baltimore and Ohio Railroad Company (hereafter referred to as the carrier) refused to pay vacation pay entitlement for the year 1966 to sixty-nine (69) Carmen, five (5) Painters, five (5) Painter Helpers and one (1) Upholsterer, who resigned from the service of the Carrier on or about April 5, 1966.
2. Accordingly, the carrier be ordered to reimburse the following named men (hereafter referred to as the claimants) for their vacation entitlement for the year 1966.
Charles Horral Louis Drury
J. G. Brothers Oscar Leonard Max E. Burress John W. James Leo E. Tomey
Wm. C. Sullivan Marvin F. Gray Hosea Masters Elbert Harman Lowell White
Wm. F. Hauser George Colbert R. L. Williams R. C. Arthur
M. H. Sullivan Donald Bullock H. G. Killion
Ray BurrisPaul K. Lewis John Wright Ed. Schnarr
D. L. Sturgeon Ray S. Cross R. E. Chattin Lee Masten
J. V. McGuire Robert Fox
D. J. BrothersD. L. Mattingly N. Granger
H. R. Roach R. J. Tennis Wm. Hand, Jr. Wm. McKinney Byrad Price F. B. Fields Louis McCord A. L. Capehart R. Woodbridge Ed. A. Walker
EMPLOYES' STATEMENT OF FACTS: On September 20, 1965 the Carrier served notice on the Employes that the Washington, Indiana Car Shop would be discontinued effective with the close of business on December 27, 1965 in accordance with Article I, Sections 2 & 4 of the September 25, 1964 Agreement (Mediation Agreement Case No. A-7030), and a copy of said Notice is attached hereto and identified as Exhibit "A."
Claimants were furloughed effective December 27, 1965 as a result of the discontinuance of the shop, and subsequent thereto, Claimants requested severance pay in accordance with the provisions of Article I, Section 7, of the September 25, 1964 Agreement. On or about April 5, 1966, each of the Claimants were paid severance pay except Edward A. Walker who was paid at a later date; however, in order to receive the severance or separation allowance, Claimants were compelled by Carrier to sign a letter of resignation which also stipulated the amount of severance pay allowed, and a copy of one of the resignation letters is attached hereto and identified as Exhibit "B."
Claimants were only paid the amount of money provided for in Article I, Section 7, of the September 25, 1964 Agreement. Claimants were not allowed vacation pay in lieu of vacation earned up to date of their resignation but not yet granted to them as is provided for in Article IV, Section 2 of the August 19, 1960 Agreement.
The form resignation letter signed by the Claimants to receive their severance pay was not an agreed-to form negotiated with the Brotherhood of Railway Carmen of America, System Federation No. 30, nor Railway Employes' Department, AFL-CIO. As evidenced by copy of letter dated May 5, 1966 attached hereto as Exhibit `C," the form letter was a letter composed arbitrarily by the Carrier.
This dispute has been handled with all Carrier officials designated to handle such disputes, including the highest designated officer of the Carrier with the result that they have all declined to make satisfactory adjustment.
The Agreement revised September 1, 1926, reprinted November 1, 1952 as subsequently amended, is controlling.
POSITION OF EMPLOYES: It is respectfully submitted that as of the date of Claimants furlough, December 27, 1965, Claimants had qualified for vacation in the year 1966 and that accordingly they were entitled to their respective earned vacation in the year 1966 or compensation in lieu thereof Article III, Section 1 of the November 21, 1964 Agreement, reads in pertinent part:
recomputed with additional benefits to be awarded the named individuals. This is a most improper request; it is contrary to the provisions of the negotiated working agreements.
In an Arbitration Proceeding on this property (121765) (BRC v B&O) the Board of Arbitration ruled on a question as to the propriety of a request by an individual for a recalculation of lump sum separation allowance. The Board of Arbitration with Chairman Francis J. Robertson sitting ruled against such a recalculation that:
There is no basis whatever for a recomputation of the separation allowance involved in the instant case.
CARRIER'S SUMMARY: The Carrier submits that the .individuals involved in Cases 7614 and 7615 have received all the protective benefits to which they are entitled. They are not now entitled do any additional compensation.
The Carrier submits that the instant claim is not valid at either parts, 1 or 2. The Carrier submits that the instant claims are expressly not supported in the working Agreement.
The Carrier respectfully requests that this Board so rule and that this claim in its entirety be declined.
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.
Petitioner seeks vacation payments for each of eighty claimants to compensate them for vacations earned in the year 1965 and due in 1966 under Article IV, Section 2 of the August 19, 1960 National Agreement. Pursuant to an Agreement dated September 25, 1964 (.Mediation Agreement Case No. A-7030), claimants were furloughed effective December 25, 1965 and subsequently each resigned with severance pay in accordance with the provisions of Article I, Section 7 of the September 25, 1964 Mediation Agreement. Peti-
tioner contends that the resignation letters executed by each claimant prior to receipt of severance pay encompassed benefits under the National Vacation Agreement, as amended, which was not contemplated by the parties to the Mediation Agreement nor reflected in the language found in Article 1, Section 7, of the September 25, 1964 Agreement. Accordingly, Petitioner seeks payment by Carrier in lieu of vacation on behalf of each named claimant. Petitioner urges that the crux of the claim is whether the applicable provisions of the Mediation Agreement directly or indirectly amended, waived or abrogated the pertinent provisions of the National Vacation Agreement, which are found in Article IV, Section 2 of the August 19, 1960 National Agreement.
In the first instance, Carrier challenges the jurisdiction of this Board to consider the merits of the instant dispute because the subject matter involves recomputation of separation allowances under Section 7 of said Mediation Agreement. In this connection, Article VI, Section 1 - Mediation Agreement Case A-7030 provides as follows:
Despite Petitioner's assertion that this Board is not required to recalculate severance allowances under the Mediation Agreement, an interpretation of Article 1, Section 7, of the September 25, 1964 Agreement is required to determine whether application of the National Vacation Agreement, as amended was affected in the manner urged by the Carrier. Accordingly, we must conclude that the proper forum is the Shop Crafts Special Board of Adjustment, which was expressly created to consider such disputes, and that this Division is without authority to consider the merits of the dispute.
The Findings of this Division shall not be construed or interpreted as being prejudicial to any rights that claimants may institute, progress or appeal to another tribunal having original or appellate jurisdiction in the premises, nor is Carrier's right to defend prejudiced by its appearance before this Division.