NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Edward F. Carter, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
KANSAS CITY TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that: ,
(a) The Carrier violated the provisions of Articles 4 (a) and 5 of the
Vacation Agreement of December 17, 1941, when it changed the 1942 vacation
periods as originally assigned to L. O. Smith and C. L. Jackson, and;
(b) The employees be reimbursed for one day's pay at time and onehalf their respective rates for loss in their normal compensation resulting
from the action of the Carrier.
EMPLOYES' STATEMENT OF FACTS:
The parties to this dispute are
parties to the National Vacation Agreement of December 17, 1941, copy of
which is attached and marked Exhibit 1, Article 4 (a) and 5 of which read
as follows:
"4. (a) Vacations may be taken from January 1st to December
31st and due regard consistent with requirements of service shall be
given to the desires and preferences of the employes in seniority
order when fixing dates for their vacations.
The local committee of each organization signatory hereto and
the representative of the Carrier will cooperate in assigning vacation dates.
5. Each employe who is entitled to vacation shall take same at
the time assigned, and, while it is intended that the vacation date
designated will be adhered to so far as practicable, the management shall have the right to defer same provided the employe so
affected is given as much advance notice as possible; not less than
ten (10) days' notice shall be given except when emergency conditions prevent. If it becomes necessary to advance the designated
date, at least thirty (30) days' notice will be given affected employe.
IP a carrier finds that it cannot release an employe for a vacation during the calendar year because of the requirements of the
service, then such employe shall be paid in lieu of the vacation the
allowance hereinafter provided."
On the occasions of this claim employes L. O. Smith, Passenger Getsman, and C. L. Jackson, Janitor in charge of Men's Rest Room, were covered
by te scope and provisions of an Agreement between the parties governing
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seniority order in fixing
dates. The Carrier recognizes seniority in fixing
the dates.
(Exhibits not reproduced.)
OPINION OF BOARD:
Claimant Smith was assigned vacation dates for
the period of June 29, 1942 to July 11, 1942, inclusive, and Claimant Jackson
was assigned vacation dates for the period of July 1, 1942 to July 7, 1942,
inclusive. Some time previous to the commencement of the vacation periods
the Carrier notified claimants that it was necessary to change the vacation
dates because holidays were not being assigned as vacation days, the rate of
pay of such holidays being time and one-half. The Carrier finally permitted
claimants to take an extra day's vacation in lieu of the included holiday
(July 4th). Claimants contend that they are entitled to compensation for
July 4th at time and one-half as a part of their vacation pay.
Applicable rules are:
"Article 4. (a) Vacations may be taken from January 1st to
December 31st and due regard consistent with requirements of
service shall be given to the desires and preferences of the employes
in seniority order when fixing the dates for their vacations.
The local committee of each organization signatory hereto and
the representatives of the Carrier will cooperate in assigning vacation dates." Article 4(a), Vacation Agreement.
"Article 5. Each employe who is entitled to vacation shall take
same at time assigned, and, while it is intended that the vacation
date designated will be adhered to so far as
practicable, the management shall have the right to defer same provided the employe so
affected is given as much advance notice as possible; not less than
ten (10) days' notice shall be given except when emergency conditions prevent. If it becomes necessary to advance the designated
date, at least thirty (30) days' notice will be given affected employe.
If a carrier finds that it cannot release an employe for a vacation during the calendar year because of the requirements of the
service, then such employe shall be paid in lieu of the vacation the
allowance hereinafter provided." Article 5, Vacation Agreement.
Claimants were assigned vacation periods in accordance with the Agreement. The Vacation Agreement Committee, provided for by Article 14, Vacation Agreement, has held that the "mere fact that a holiday may occur within
a given week is not sufficient justification for the exclusion or inclusion of that
week in the vacation schedule" and that "the Carrier without a showing that
their action is consistent with the requirements of the service cannot arbitrarily exclude any given period from the vacation schedule." Decision 16-W
Decisions Rendered by the Committee Established by Article 14, Vacation
Agreement. These holdings are final and binding upon this Board.
It is clear that the vacation periods of these two claimants were changed
solely to avoid the payment of overtime for the included holiday. It was
not shown that the requirements of the service necessitated the change. In
fact, claimants were permitted to be away during the first designated vacation days when they agreed to take an additional vacation day in lieu of the
holiday. Consequently, agreement basis did not exist for the change in the
vacation period. This means that claimants were entitled to the vacation
days originally assigned and it is for those days that they should be paid.
This holding is in line with the interpretation placed upon the Vacation
Agreement by Referee Wayne Morse who, in answer to question No. 1, said
in part:
"The important point for the parties to keep in mind is that
the primary and controlling meaning of the first paragraph of
Article 5 is that employes shall take their vacations as scheduled
and that vacations shall not be deferred or advanced by manage-
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ment except for good and sufficient reason, growing out of essential
service requirements and demands." Vacation Agreement, P. 64.
As a result of the Carrier's violation of the Agreement, Claimants were
deprived of their vacation pay for July 4th at the time and one-half rates.
of their positions. An affirmative award is in order.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the carrier and the employee involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act,,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated as charged.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: A. I. Tummon
Acting Secretary
Dated at Chicago, Illinois, this 3rd day of December, 1948.