2 weeks 3 weeks 4 weeks 5 weeks Form 1 Award No. 13652
Section 1(a) sets a 100-day "compensated service" level for an employee to "qualify for a vacation allowance"; this substitutes for a different method of measuring years for vacation purposes. The parties indicate no disagreement that this measure applies to all employees - "current" or otherwise - in determining "qualifying years" in the future.
Section 1(d) determines the number of weeks of vacation based on "qualifying years." This new vacation language calls for a greater number of "qualifying years" to achieve additional weeks of vacation. The prior Agreement read as follows:
While the repetition of the numbers 3,10,17, and 25 might appear to be confusing, the Board must reasonably conclude that, under the revised Rule 10, the granting of two weeks' vacation comes after achieving four, rather than three, "qualifying years." Similarly, an extra "qualifying year" is added to achieve three and four vacation weeks. There is no dispute that this additional qualifying year applies to all employees hired after effectuation of the new Agreement.
The date referenced in Rule 10(e) was changed by agreement of the parties to January 1,1999. The Organization insists, however, that the change in "qualifying years" was not negotiated for "current" employees and relies on Rule 10(e) for this protection. The Carrier, in contrast, argues that "qualification requirements" are all-inclusive, beginning with 1999; that is, applicable to both Section 1(a) and 1(b). The Carrier further argues that; the prohibition against "qualifying years" being "changed or altered" applies only to past; years. Form 1 Award No. 13652
It is possible that no employee has been affected as yet by the parties' contrasting interpretation, since the difference applies only when employees attain the critical 3-4 (or 10-11 or 17-18) "qualifying years." Nevertheless, the Organization's original claim states:
The Board regularly resists making declaratory judgments; that is, interpretations in the absence of a alleged contractual violation affecting specific employees. Here, however, the parties are obviously requesting the Board to do so.
Unfortunately in the interest of clarity, Section 1(e) combines two separate new provisions, as follows:
Addressing the second point first, the new Rule 10, Section 1(a) through Section 1(c) establish a departure from previous vacation agreements in "qualifying for vacation allowances." For a calendar year to count toward vacation, achievement of 100 days of compensated service is required. This is obviously the "vacation requirements" covered in Section 1(e). Any doubt about this is dispelled when it was found to be impractical to, initiate this in 1998, since much of that year had already passed. Put another way, the new 100-day service requirement does apply to all employees but, as stated, such commences "on January 1, 199[9]."
The first part of Section 1(e) concerns something quite different (and of much more significance to employees in regular attendance year by year). This concerns how many "qualifying years" are required to be granted a "vacation allowance" of one to five weeks., Form 1 Award No. 13652
As discussed above, the revised Section 1(d) adds one year to the achievement of two, three, and four weeks' vacation. Put another way, if these were applied to all employees, it would mean that the parties had negotiated a decrease in vacation benefits for current employees. If such were the case, there would appear to be no basis for inclusion of the first portion of Section 1(e).
Although such is not specifically stated in its presentation, perhaps the Carrier seeks to use the initial portion of Rule 1(e) simply to mean that "qualifying years" up to 1999, however determined, would not be disturbed. If that were the sole intent, the phrase would more logically say, "previous qualifying years are not changed." On the contrary, what it does say, is that current employees qualifying years will not be changed or altered by this Agreement." (Emphasis added) This convincingly means there will be no change, retroactively or in the future, for "current employees."
If there is any remaining ambiguity here, the Board relies on an established principle of contract interpretation: Ambiguity must be resolved against the interest of the party creating the language. Here, the Carrier's Section 6 Notice for contract changes included a proposed Rule 10, Section 1(e) identical to that adopted by the parties, with the single exception of the date, which in the Section 6 Notice reads, "January 1, 199 ."
This Board, after consideration of the dispute identified above, hereby orders that: an award favorable to the Claimants) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to they parties.