Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10872
SECOND DIVISION Docket No. 10622
2-PFE-CM-186
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Pacific Fruit Express Company
Dispute: Claim of Employes:
1. That the Pacific Fruit Express Company violated Rule 14,
Appendix "A" of the controlling agreement when they denied
Carman 0. J. Holmes his ten (10) days vacation earned in the
year 1981 for the year 1982, Tucson, Arizona.
2. That accordingly, the Pacific Fruit Express Company be ordered
to compensate Carman Holmes in the amount of ten (10) days,
plus 10% interest annually, for vacation not allowed in the
year 1982.
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 employes 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.
This dispute raises the issue of whether an employee is entitled to
credit toward the number of days of compensated service needed to qualify for
vacation, in an amount represented by the period by which an actual, disciplinary suspension is reduced by the Carrier, and for which the employee
receives compensation at his normal rate. For the following reasons, we find
that this issue is moot, and that the Claim must be dismissed.
Claimant was employed at Carrier's Tucson, Arizona facility. After a
Disciplinary Hearing on March 18, 1981, into charges of dishonesty, Claimant
was suspended from service for a 90 day period from April 3, 1981, through
July 2, 1981, without pay. In the process on the property of negotiation and
conference between the General Chairman and Carrier's Manager of Industrial
Relations with respect to Claimant's 90 day suspension, an agreement reducing
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Award No. 10872
Docket No. 10622
2-PFE-CM-'86
the assessed discipline to 30 days was reached. Evidence of this agreement is
contained in a letter from the Manager to the General Chairman which was
expressly referenced by the Carrier during the handling of this Claim on the
property. The letter is dated December 18, 1981, and states in pertinent part:
"Therefore, we have mutually agreed that full
and final disposition of this entire case will
be effected by PFE payment to Claimant 0. J.
Holmes of such wages as he would have received
for the other 60 days had he not been suspended
during that time. I also agreed that I shall
order the documentation hereof to be removed
from his Personal Record file which will thus
be clear of this matter.
By copy of this letter, am directing that this
case be so finalized in complete settlement of
all claims herein howsoever arising and by
whomsoever filed. Am giving you three (3)
copies hereof, one that you may have record of
the concurrence herein extended me in our phone
talk today, the second for the Local Chairman's
file, with the third copy to go to Claimant
Holmes himself if you decide he should have one.
(Emphasis supplied)
Further evidence that the payment for the sixty days was a full and
complete settlement of the Claim in this dispute is Carrier's unrebutted
assertion that Claimant received no credit toward his apprenticeship for the
sixty day period of suspension for which he ultimately received payment of
wages.
The Board finds that there is sufficient, credible evidence that a
settlement agreement was reached between the parties in which the Claimant
received payment for sixty days lost wages in consideration for a full and
final settlement of his contested suspension from service in 1981, including
the instant Claim.
A W A R D
Claim dismissed.
Attest.
.
Nancy J Wer - Executive Secretary
Dated at Chicago, Illinois, this 4th day of June 1986.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division