Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6695
' ' SECOND DIVISION Docket No. 6589
2 AT&SF-EW-'74
The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
( System Federation No. 97, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Electrical Workers)
(
( The Atchison, Topeka and Santa Fe Railway Company
( -Eastern Lines -
Dispute: Claim of Employes:
1 1.That the Atchison, Topeka and Santa Fe Railway Company erred and
violated the terms of the July 1, 1969 Agreement anc: Appendix 1
of that Agreement (Vacation Agreement) when they failed to properly
compensate Electronic Technician J. J. Konicki for his vacation
of 1971.
2. That, accordingly, Electronic Technician J. J. Konicki be
compensated at the rate of $4.76 per hour for such vacation time.
Findings:
y
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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant had, in 1970, satisfied the requirements of Section 1 (d)
of Appendix No. 1 of the controlling agreement between the parties and was
entitled to twenty days vacation in 1971. On October 29, 1970 Claimant
was granted a leave of absence from his position as Electronic Technician
with the Carrier due to his having suffered a severe illness. Claimant
never returned to active compensated service with the Carrier, having
elected to retire and accept an annuity under the provisions of the
Railroad Retirement Act which was approved in February, 1972, effective
November 1, 1971. Approximately three months after commencement of
Claimant's leave of absence, namely on January 23, 1971, Carrier abolished
the position of Relief Non-Licensed Electronic Technician, which was
Claimant's regular assignment at the time he went on leave, and the second
shift Technician position, at its 18th Street (Chicago, Illinois) Radio
Shop. One new position with hours different than those of the eliminated
Form 1 Award No. 6695
Page 2 Docket No. 6589
2-AT&SF-EW-'74
ones was established and advertised for bid. The occupant of the former
second shift assignment, who had less seniority than Claimant, bid for and
was awarded the bulletined new position. In December, 1971, Carrier paid
Claimant twenty days pay, a t the rate of his bulletined position which was
in effect on October 29, 1970. On February 19, 1972, Claimant wrote
Carrier's Superintendent, Communications Department, as follows:
"I have received my vacation pay for 1970 in December of
1971 at the rate of $4.78 per hour.
After mailing my semi-monthly forms for vacation pay,
a new contract was ratified. Therefore, I am filing a claim
for the difference from the old contract, which amounts to
50~ per hour."
Carrier denied the claim on the ground that the rate paid was correct
and in accordance with the Rule of the controlling agreement applicable
to Claimant's circumstances.
Petitioner contends that Carrier invoked the wrong Rule in determining
the rate of vacation pay due Claimant in December, 1971. It argues that
Section 7(a) of Appendix 1, which reads: "An employee having a regular
assignment will be paid while on vacation the daily compensation paid by
the Carrier for such assignment.", is controlling, and not Section 7(e)
which reads: "An employee not covered by paragraph (a) ... of this Section
will be paid on the basis of the average daily straight time compensation
earned in the last pay period preceding the vacation during which he
performed service," as averred by Carrier. The thrust of Petitioner's
position is that by virtue of Claimant's seniority he retained the right
while on leave of absence to displace the employee junior to him who
secured the position bulletined in January, 1971. Therefore that was
claimant's "regular assignment" being worked temporarily by the successful
bidder until Claimant's application for his annuity was approved which
occurred subsequent to December 30, 1972. The contractual rate of
compensation for the vacation period Carrier assigned to Claimant was
$4.76 per hour and Claimant should have received that rate for his earned
and accrued vacation pay.
Carrier submits that on and after January 24, 1971 the position which
Claimant held when he went on leave of absence was abolished. Claimant,
not having been eligible because of his disability to bid for the new
position' bulletined at that time, had no "regular assignment" as of December,
1971. Therefore he was not "covered by paragraph (a) of" Section 7 of
Appendix 1 of the Agreement. Such rights which Claimant may have had to
displace the Technician, who had less seniority than he did, to the job
which he
never worked, did not establish the position filled pursuant to
the January, 1971 advertisement of a vacancy as Claimant's "regular
assignment". Therefore he was only entitled to the rate provided for in
paragraph (e).
Form 1
Page 3
Award No. 6695
Docket No. 6589
2-AT&SF-EW-' 74
Essentially the validity of the claim herein is dependent upon whether
fn fact Claimant had "a regular assignment" while on "vacation" during
the period December 4 through December 29, 1971. There is a material
difference between a seniority right to a position which an employee nay,
or may not assert and utilize and regular assignment to a position filled
through posting of a new job for bid. Petitioner does not put in question
the validity of Carrier's action in changing the operations at the Radio
Shop. Nor did it controvert Carrier's assertion, "As you know it has been
the practice in the Communications Department that when an employee was on
leave of absence and his job was abolished he was not allowed to declare
himself until he returned to service." (Employes' Exhibit
F.)
Claimant did. not have a "regular assignment" on December 4, 1971, and
therefore was not entitled to the provisions of paragraph (a) of Section
7.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
B y_
` Rbsemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 8th day of May, 1974.