Award No. 5669 Docket No. 5480 2-B&O-CM-'69
The Second Division consisted of the regular members and in
addition Referee George S. Ives when award was rendered.
SYSTEM FEDERATION No. 30, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: The Claimant worked 97 full days during the year 1964 for a total of 115 days on which he rendered compensated service. Carrier's letter of declination dated June 7, 1966, is attached hereto as evidence thereof and referrd to as Exhibit A.
Th Claimant was discharged from service of the carrier as of September 18, 1964, following an investigation held on August 25, 1964.
The claimant was not paid vacation pay in lieu of vacation for the year 1965 as required by Article IV, Section 2 of the August 19, 1960 Agreement.
The handling of this claim is hereby attached and referred to as Exhibit B-1 through B-1~).
This dispute has been handled with all officers of Carrier designated to handle such disputes, including Carrier's highest designated officer, all of whom as declined to make satisfactory adjustment.
The agreement revised September 1, 1926, reprinted November 1, 1952, as subsequently amended is controlling.
POSITION OF EMPLOYES: Article IV - Vacations, Section 2 of the August 19, 1960 Agreement reads in pertinent part:
tion pay hi lieu of vacation for the year 1965 under Article IV, Setcion 2 of the August 19, 1960 National Agreement, and therefore, constitutes a bar to this claim under the time limit rule contained in the effective Agreement between the parties. Petitioner contends that claimant here seeks only accrued vacation pay as a discharged employe under Article IV of the August 19, 1960 National Agreement which is a separate claim not contemplated in his original claim for reinstatement. Moreover, Petitioner urges that Carrier has waived the right to raise this question because the mertis of the dispute were considered by the parties on the property.
Analysis of Article IV, Section 2 of the August 19, 1960 Agreement and the record herein reveals that a discharged employe is entitled to vacation pay in lieu of vacation which has accrued during the previous year, and that Carrier's principal averment while this dispute was considered on the property was that claimant rendered less than the requisite one hundred and ten (110) days of compensated service needed to qualify for a vacation in the succeeding year prior to ,his discharge in 1964. Contrary to Carrier's present position, we must conclude that Carrier endeavored to dispose of the instant claim on the merits without urging that the time limit rule barred consideration of the substantive issues which allegedly were encompassed by the original claim on behalf of the Claimant. Therefore, we find that Carrier is now barred from raising this issue before the Board. (Awards No. 1834, 3931 and 4102). Likewise, the participation of Petitioner in conference concerning the instant grievance subsequent to Carrier's failure to properly respond to the initial appeal by Petitioner effectively waived such procedural error on the part of Carrier.
As to the merits of the dispute, it is undisputed that Claimant worked at least part of eighteen (18) days in addition to ninety-seven (97) full days during the calendar year 1964. Article IV - Vacations, Section 1, Paragraph (b) of the August 19, 1960 Agreement in part provides as follows:
Other requirements are included which have been met by claimant and the sole issue for determination is whether the part time days worked by claimant during 1964 may be included as days of compensated service under this provision. Petitioner relies on Interpretations if the Vacation Agreement propounded by Referee Wayne L. Morse on November 12, 1942 to support the instant claim. Examination of such interpretations support a finding that each calendar year for which an employe is paid for some time worked will be counted with exceptions not here applicable. Accordingly, the instant claim must be sustained.