Form 1 NATIONAL RAIMOAD ADJUSTMENT BOARD Award No. 8095
SECOND DIVISION Docket No. 7882
. 2-Ma-SM-'79

The Second Division consisted of the regular members and in addition Referee Irwin M. Lieberman when award was rendered.

( Sheet Metal Workers' International

( Association

Parties to Dispute:

( i4issour-i-Kansas-Texas Railroad Company

Dispute: Claim of amployes:

1. That the P.Iissouri-Kansas-Texas Railroad Company violated the

agreement, particularly Article 1(g) of the Agreement of August 21,

1954, and Article III, Sections (i) and (j) of the Arrreement of

May 12, 1972, when they arbitrarily denied Sheet iJetal o7orker

J. B. Trotnic his third week of vacation in the Year 1977.

2. That accordingly, the Missouri-Kansas-Texas Railroad Company be

ordered to compensate Sheet I,'.etal Worker Trotnic in the amount of

$305.02 for his third. week of vacation for the Year 1977.

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.

Parties to said dispute iraived right of appearance at hearing thereon.

Claimant was first employed by Carrier on August 18, 1965. On Noverrioer 3, 1965 he entered military service and returned to Carrier's employ on September 8, 1967. The issue herein is whether his service with Carrier was sufficient to entitle him to three weeks vacation in 1977.

The relevant Sheet Metal Workers' National Vacation Agreement rules are as follows:

"1(g) In instances where employes have performed seven (7) months' service with. the m:ploy;_ng carrier, or have performed, in a calendar year, service sufficient to qualify them for a vacation in the following calendar year, and subsequently become members of the Axmec. Forces of the United States, the time spent by such employes in the Armed Forces will be credited as qualifying service in determining the length of vacations

for which they may,qua~ify upon their return to the service of the employ2ng carrier.

Form 1 Award No. 8095
Page 2 Docket No. 7882
2-r4lr-sM-' 79
"(i) In instances where employees who have become members of
the Armed Forces of the United States return to the service of
the employing carrier in accordance with the Military Selective
Act of 1967, as amended, the time spent b y such employees in the
Armed Forces subsequent to their employment by the employing
carrier will be credited as qualifying service in determining
the length of vacations for which they may qualify upon their
return to the service- of the employing carrier.
(j) In instances where an employee who has become a member of
the Armed Forces of the United States returns to the service of
the employing carrier, in accordance with the Military Selective
Service Act of 10,67, as amended, and in the calendar year preceding
his return to railroad service had rendered no compensated
service of had rendered compensated service on fewer days than
are required to qualify for a vacation in the calendar year of h=s
return to railroad service, but could qualify for a vacation in
the year of his return to railroad service if he had corbi ned for
qualifying purposes days on which he was in railroad service in
such preceding calendar year with daITs in such year on which he
was in the Armed Forces, he iri11 be granted, in the calendar year
of his return to railroad service, a~vacation of such length as
he could so qualify for under paragraphs (a), (b), (c), (d), or
(e) and (i) thereof."

Carrier states that when Claimant was reemployed he did not have the

seven months of serv i ce nor the necessary qualifying ~days entitling him to
vacation in 1968 (earned in 1067). The :lational Vacation Agreement was
amended on Septe=mber 2, 1069 (effective jatraary 1, 1069) to eliminate the
seven month requirement of the mile. However, according to Carrier, since
the change took place subsequent to Claimant's return to service and was not
retroactive, he was not entitled to the claimed three week vacation. Carrier
argues that ~similarly, the 1972 swrnenCment to the Rational Vacation Agreement
is not relevant to tais dispute since Clairnant had returned to Carrier's
service long before the January- 1, 1973 effective date of that provision.
Carrier also argues that if Claia:iant's position is correct, the Claim should
have been filed for additional vacation in 1976; thus the instant claim is
late and should not be considered by this Board.

The Organization relies or., the language of article 1(g) of the August 1954 Agreement read in conjunction with Article II Sections (i) and (j) of the May 1972 Agreement. Petitioner also cites a Supreme Court decision (Magma Copper) and two Federal District Court decision:;. The latter of those decisions, Barry v. Smith ('U.S.D.C. T4Wss., 1908, 285 F. Supp. 8ol) dealt with an identical situation in which the Claimant had not been employed for seven months as required by the August 1954 Agreement. In that case the Court held that the parties could not deprive Claimant of the benefits which Congress had secured for him and sustained the vacation claim.
Form 1 Award No. 8095
page 3 Docket To. 7882
2-bT:T-SM-' 79

Initially it should be noted that Carrier's argument that the Claim herein is tardy and should have: been filed a year earlier does not have merit. That argument would effectively preclude the filing of any Claim in which a continuing violation is alleged unless filed at the first instance of the alleged infraction. The Claim in this case was timely filed for the time period for vacation requested.

The essence of Carrier's position in this dispute is that the 1969 and 1972 amendments to the National Vacation Agreement have no bearing on this dispute since Claimant returned to service from the military in 1_967. It is argued that the provisions of the amendments were not retroactive and cannot be applied to individuals who returned to Carrier's service prior to the effective date of those agreements. ;mile we agree that the two amendments, supra, may not be applied retroactively, we cannot agree with Carrier's position. There is no retroactive Claim in t'ais dispute, as we vie~,,· it, but rather a Claim based on cast events and a current agreement. It would be patently imcroaer to ignore the provisions of currem agree:rents in evaluating past service of e:-!'nloyes; militar,,T or other-ori se, for vacation purposes. In mahi ng this detenination, we do not rely on the court decisions submitted, but merely the languame of the currently applicable agreement. Fast service must be calculated and credited, for vacation purposes, based on the tenrs of the applicable agreement at the time the vacation is applied for, not based on the agreement at some earlier date. This prinieple is clearly applicable to all aspects oz vacation entitlement, including prior milztar;,r se-ynrice. Thus, the fact that Clai_n:ant would not have qualified for the third week of vacation based on the 1954 .1-reerrent is not material; the terms of the current (1972) Agreement are controlling.

A W A R D

Claim sustained.

NATIO?"PIL RAILROAD ADJUSTl`~TPTP B0."iRD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

.

By'.'- _
~'' 1~osemarie Brasch - Administrative Assistant

Datef at Chicago, Illinois, this 27th day of Septenber, 1979.