Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11704
SECOND DIVISION Docket No. 11042
89-2-85-2-167
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
(Brotherhood Railway Carmen of the United States and Canada
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM:
1. That the Southern Pacific Transportation Company (Eastern Lines)
violated the Vacation Agreement, Addendum I, as amended, when they arbitrarily
denied Carman B. S. Fisher his earned fifteen (15) days' vacation in the Year
1984, Houston, Texas.
2. That accordingly, the Southern Pacific Transportation Company
(Eastern Lines) be ordered to compensate Carman Fisher in the amount of one
hundred twenty hours (120') at the pro rata rate of $13.22 per hour account
being denied his vacation in 1984.
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.
The Organization points out that the Claimant made an inquiry through
the Organization to determine whether or not he was due a vacation in the year
1984. The matter was referred to the Carrier, and Claimant was notified that
he was qualified for vacation, and a vacation selection sheet was furnished by
his supervisor who signed him up for three (3) weeks vacation. The Claimant
elected to take his fifteen (15) days of vacation beginning April 21, 1984,
which was granted, and he was not notified that he was not qualified for vacation until he returned to work at the completion of his vacation period. The
Organization charges if an error was made in granting the vacation, it was
Carrier's responsibility and the Claimant should not be required to suffer
monetarily for Carrier's failure to notify him that his vacation request would
not be granted prior to taking his vacation.
It is the Organization's position that to deny the Claim would result
in the Claimant losing three weeks' pay when he would have worked, if he was
notified prior to commencing his vacation.
Form 1 Award No. 11704
Page 2 Docket No. 11042
89-2-85-2-167
The Carrier contends that Claimant requested through his Organization
whether or not he was due a vacation in 1984. The Organization then made a
request of a Carrier officer to determine if Claimant was eligible for a
vacation in 1984.
The Carrier submits that the Carrier officer then contacted timekeeping in San Francisco in order to determine if Claimant was eligible for a
vacation in 1984. Timekeeping responded by stating that Claimant had not
worked enough days in 1983 to qualify for a vacation in 1984, account being
discharged May 25, 1983, for failure to comply with the terms of Award No. 3
of Public Law Board 2876. However, he was reinstated to service December 21,
1983, on the basis of the Interpretation to Award No. 3 of Public Law Board
2876.
The Carrier asserts that the Organization advised that Claimant was'
qualified account Award No. 3 which reinstated Claimant to service, "with
seniority and other rights unimpaired" also included vacation rights. The
Timekeeper accepted the explanation and agreed to allow Claimant's vacation.
However, upon returning from his vacation, Claimant was advised he was not
entitled to vacation time, since he had not worked enough days in 1983 to earn
a 1984 vacation.
The only way an employee can be entitled to vacation, in the view of
the Carrier, requires that he comply with the provisions of the National Vaca-
tion Agreement. The National Vacation Agreement and Vacation Agreement Adden-,~,
dum I, as amended, of the current Agreement requires the rendering of a mini
mum number of days of compensated service as a means by which an employee
qualified for this benefit which the Claimant failed to do.
The Carrier concludes it has not violated the Vacation Agreement
Addendum I, as amended or any other Rule of the current Agreement.
The series of interrelated Claims involving Claimant span several
years and include at least two decisions of Boards, an Interpretation of one
of those decisions, and a Memorandum and Order, and an Agreed Final Judgment
of the District Court.
The District Court tracked the somewhat tortuous route of the
Claimant's grievances in its "Memorandum and Order" as follows:
"The facts are not in dispute. Carman B. S.
Fisher, a member of the plaintiff Union, was
dismissed by the defendant Railroad for absentee
ism. A grievance was filed and pursuant to the
Railway Labor Act, 45 U.S.C.
H
151 et.
sue.,
and
the contract between the parties was submitted for
arbitration to Public Law Board 2876. Both Plain
tiff and Defendant are covered by the Railway Labor
Act. The Public Law Board reinstated Carman Fisher
on a probationary status for one year. Toward the
end of the one year probationary period, Defendant
Form 1 Award No. 11704
Page 3 Docket No. 11042
89-2-85-2-167
discharged Cayman Fisher once again for absentee
ism. Defendant discharged Cayman Fisher without a
hearing, contrary to the terms of the labor con
tract. Plaintiff objected to Cayman Fisher's
dismissal without a hearing. Defendant then asked
the neutral referee member of the Public Law Board
for an interpretation of the prior award. The
neutral referee recommended that Cayman Fisher once
again be reinstated, but without back pay. The
referee stated that the Public Law Board could
modify the terms of the labor contract as it ap
plied to Cayman Fisher, but could not say whether
the hearing requirement had been abrogated by the
award.
Plaintiff subsequently filed a grievance with
the National Railroad Adjustment Board. The dis-
pute was arbitrated.. The issue of whether the
original arbitration and the neutral referee's
interpretation were yes judicata or otherwise bind
ing on the second dispute was expressly considered
and rejected by the Board. The Board ordered that
Cayman Fisher be reinstated with back pay and
benefits. Defendant, however, refused to honor the
award, claiming the Board was without jurisdiction
because the grievance had been previously decided
by the original arbitration and the neutral
referee's interpretation."
The "Memorandum and Order" also noted and found in pertinent part:
"The purpose of the Railway Labor Act is to
resolve minor disputes between covered employers
and unions through arbitration, avoiding resort to
the courts. Brotherhood of Locomotive Engineers
vs. St. Louis Southwestern Railway Company, 757
F.2d 656, 658-59 (5th Cir. 1985). Once an arbitration decision has been issued, the Act forecloses relitigation of the same issues in court.
_Id. at 659. The scope of review of such awards is
limited to:
(1) failure of the board to comply with the
Act; (2) fraud or corruption; or (3) failure
of the Board to confine its order or award to
matters within its jurisdiction.
_Id. at 661. Here, Defendant states the board was
without jurisdiction due to the preclusive effect
of the prior arbitration and interpretation.
Form 1 Award No. 11704
Page 4 Docket No. 11042
89-2-85-2-167
~'
Whether arbitration awards are to be given a
res judicata or stare decisis effect is itself a
subject for arbitration if tie parties can not
agree on the effect of the award. New Orleans
Steamship Association, 626 F.2d at 468. Here, the
res judicata effects of the original arbitration
and the neutral referee's interpretation were ex
pressly decided by the second arbitration. Thus,
the res judicata issue was properly submitted to
arbitration and, having been arbitrated, can not be
relitigated here. The Court thus finds the ori
ginal arbitration and interpretation did not divest
the Board of jurisdiction.
The Court would further note, however, that
neither the original award nor the neutral
referee's interpretation expressly address the
issue of whether Carman Fisher could be discharged
during his probation without a hearing. Moreover,
the Court believes it is beyond argument that the
second discharge without a a hearing gave rise to a
new grievance not encompassed within the original
dispute. Thus, if the Board's res judicata de
cision is not binding on this Court, the Court
would find this is a new dispute and thus the Board -
had jurisdiction."
The Court's Final Judgment ordered, in pertinent part, that:
" ....Defendant pay to claimant, Ben S. Fisher,
all movies due him pursuant to Award No. 10636 of
the National Railway Adjustment Board, Second Division, together with interest at the statutory rate
from November 30, 1985, until paid; that Defendant
restore claimant's vacation benefits and seniority
rights which were impaired as a result of his
improper dismissal;
...."
There is need in any analysis and finding on the merits of the
instant claim to distinguish what decision control what part of what claim.
The Court found that Second Division Award 10636, in effect, was controlling
_as it pertained to any rights Claimant was to enjoy during his last chance
probationary period granted by the Public Law Board 2876. It must be noted
that the one year probationary period ran from approximately June 30, 1982, to
May 30, 1983.
The Public Law Board Award, issued on April 26, 1982, put the Claimant back to work without back pay and its Interpretation on December 2, 1983,
Form 1 Award No. 11704
Page 5 Docket No. 11042
89-2-85-2-167
"recommended" he be "immediately reinstated to work under the same conditions,
without pay." Given the subsequent Award of the Second Division and the decision of the Court, it appears, from the record before this Board, that the
period from the date of his termination on May 25, 1983, to his court-ordered
reinstatement, pursuant to Award 10636, sustained the Claims for the period
"beginning May 25, 1983 until returned to service." That Award granted reimbursement for all monetary losses and "vacation rights and seniority rights
unimpaired."
Any reasonable reading of either the decision of that Second Division
Award or the Court indicates both sustained those aspects of the Claim cited
above which commenced with the Claimant's dismissal on May 25, 1983. The critical calendar year to determine vacations eligibility to be taken during 1984
is the "service rendered" during 1983. In the facts before this Board, the
Claimant did work for the Carrier under the terms of his last chance probationary reinstatement for the first five (5) months of 1983 granted by Public Law
Board 2876. In addition, the Second Division Award reinstatement with pay and
"vacation rights" commenced with May 25, 1983, and thus established the Claimant's employment status with the Carrier for the balance of 1983. It could
be argued that the two decisions together establish that the Claimant was in
retrospect an "employee" of the Carrier during both periods of 1983.
However, it must be noted that Award 10636 was not issued until October 30, 1985, and the Court Order until May 19, 1987. The instant Claim of
the Organization was instituted on June 6, 1984. In its July 6, 1984, denial
of the Claim, the Carrier stated:
"With reference to your letter of June 6, 1984
concerning claim of Cayman B. S. Fisher, alleging
violation of Vacation Agreement, Addendum I.
It is true the Local Committee made request of
the Division Mechanical Officer's office to determine if Cayman B. S. Fisher was due a vacation in
1984. The response from the San Francisco Timekeeper was that Cayman Fisher had not worked enough
days in 1983 to qualify for vacation, account being
discharged May 25, 1983 and reinstated December 21,
1983.
When you were notified that Mr. Fisher was not
qualified for vacation in 1984, you advised Mr.
Fisher was qualified account the award reinstating
him to service 'with seniority and other rights
unimpaired' also included vacation rights; therefore, Mr. Fisher was entitled to his 1984 vacation.
The San Francisco Timekeeper accepted your
explanation and agreed to allow Mr. Fisher's vacation; however, was overruled when he endeavored to
pay Mr. Fisher for his vacation.
Form 1 Award No. 11704
Page 6 Docket No. 11042
89-2-85-2-167
As the award reinstating Mr. Fisher to service
did not also grant him a vacation to 1984, as you
claimed, your time claim for 120 hours at the rate
of $13.22 per hour in behalf of Carman B. S. Fisher
is respectfully declined."
The Organization then advanced the Claim to this Board on June 4, 1985, when
the dispute could not be satisfactorily adjusted on the property.
This Board, therefore, must limit its review to the conditions that
existed at the time the Claim arose in 1984 and cannot properly consider post
facto events or the subsequent decisions of either Second Division Award 10636
or the Court. This necessary restriction by the Board in the case at bar, in
no way alters the significance of those two decisions or their application to
other appeals or other Claims. However, neither was formulated in June 1984,
when the instant Claim for denied 1984 vacation benefits, based upon 1983
service, was initiated.
This Board finds controlling the Award of PLB 2876, Award 3 issued on
April 26, 1982, and the subsequent "Interpretation" on December 2, 1983, which
resulted in Claimant being reinstated on December 21, 1983. In both determinations, the Claimant was restored to service without pay. Based on the record
_as _it then existed, Claimant rendered "compensated" service only from January ~rI""
1, 1983 to May 25, 1983, and from December 21, 1983, to December 31, 1983,
less whatever days he was absent during those periods. Whatever his "impaired
rights" were based upon, these two determinations in terms of any vacation
rights claimed, must conform to the conditions of the Agreement. The instant
claim charges a violation of the Vacation Agreement Amendment I and charges
the Claimant was arbitrarily denied his earned fifteen (15) days' vacation in
1984. The controlling Vacation Agreement provides in pertinent part:
"ARTICLE III - VACATIONS
Section 1. Insofar as applicable to the
employees covered by this Agreement who are
also parties to the Vacation Agreement of
December 17, 1941, as amended, Article 1 of
that Agreement, as last amended by the
Agreement of September 2, 1969, is hereby
further amended effective January 1, 1973, to
read as follows:
(c) Effective with the calendar year
1973, an annual vacation of fifteen (15)
consecutive work days with pay will be granted
to each employee covered by this Agreement who
renders compensated service on not less than
Form 1 Award No. 11704
page 7 Docket No. 11042
89-2-85-2-167
one hundred (100) days during the preceding
calendar year, and who has ten (10) or more
years of continuous service, and who during
such period of continuous service renders
compensated service on not less than one hun
dred (100) days (133 days in the years 1950
1959 inclusive, 151 days in 1949, and 160 days
in each of such years prior to 1949) in each
of ten (10) of such years, not necessarily con
secutive."
The language of the Vacation Agreement is clear and unambiguous. As
a condition precedent to be eligible 'f or vacation in 1984, Claimant must show
that he rendered "compensated service on not less than one hundred (100) days
during the preceding calendar year." Absent some showing to the contrary,
there was no evidence in June 1984 that the Claimant's compensated service in
1983 met this contractual requirement. The Carrier thus had grounds _at that
time to deny his Claim for vacation benefits in 1984.
While there is no dispute that the Timekeeper erroneously granted the
vacation based upon an inaccurate interpretation and application of the Public
Law Board decisions, the Board finds unpersuasive the Claim that the Carrier
should thus be bound by this unintended error of its Agent.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ancy J. ,Rwr - Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1989.
LABOR MEMBERS DISSENT TO
AWARD N0. 11704, DOCKET ND. 11042
(Referee Thanas F. Caret')
The Majority gravely erred in their denial decision of this
dispute when they erroneously stated after lengthy review of the record that,
"This Board, therefore, must limit its review
to the conditions that existed at the time
the Claim arose in 1984 and cannot properly
consider post facto events or the subsequent
decisions of either Second Division Award _
10636 or the Court."
Both the Award 10636 and the action taken by the Federal Court
are substantiated in public documents, bott. of which support the
Claimant and if properly considered should have resulted in a Sustaining
Award in favor of the Claimant.
As to the rationale used wherein it was decided that the Vacation
Agreement Amendment I, being applicable, the majority failed to consider
from the record, that the Claimant was advised by the Carrier that he
was entitled to the 15 days vacation.
Such rationale is contrary to Awards of this Division such as
Award 7987
and
10975 wherein it was held that:
Award 7987 Referee Bernard Cushman
"The Carrier failed to
show any
evidence that
any representative of the Carrier at
any
time
prior to the taking of the claimant's vacation
advised her in any fashion that she was not entitled
to the fifth week as stated in the vacation notice."
t
LABOR MUIBERS DISSENT TO
AWARD NO. 11704,DOCKET NO. 11042
_ 2 _
Award 10975 Referee John J. Mikrut,Jr.
"In this record, Second Division Award 7987
and Third Division Award 19937 create an
exception to Carrier's right to recoupment
which is on point with the facts involved
in the istant dispute. Those Awards hold
that when an employee detrimentally relies
upon information provided by Carrier, recoupment by Carrier is denied unless it can be
shoran that the employee
knew
that the over-
payment was in error. This is the exact.
situation at bar since Carrier and Organization,
utilizing information which had been supplied.
by Carrier, determined that Claimant world
qualify for a vacation
in
1981 if
certain future
conditions were met. Claimant did not participate
in the joint determination, but rather merely did
as he was advised. Consequently, this
dispute
falls within the parameters of the exception
prescribed in Awards 7987 and 19937."
Since the Majority failed to properly consider these prior decisions,
they erroneously were led to this improper, and grossly erroneous decision.
For these reasons Award 11704 is palpable in error and contains no
precedental value and the Labor Members vigorously Dissent.
Vw
R. A ohnsgh~
,
M. ilipovic ~
i
D.
A. Hampton
, ~
R. ERvwalski
~-'r'
Kowalski T. Proffitt
CARRIER MEMBERS' CONCURRING OPINION
TO
AWARD 11704, DOCKET 11042
(Referee Carey)
While the Board's decision rejecting the efficacy of Second
Division Award 10636 is clearly correct, we believe the more
appropriate rationale for doing so was set forth in our Dissent
to that Award, which we incorporate herein by reference.
,
M. W. FINGE UT
R. L. HIC S
. J
M. C. LESNIK
P. V. VARGA
J E. YOST
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