NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Norfolk & Western Railway that
1. The Carrier violated the Agreement between the parties covering vacation and rest days when it unilaterally changed the accepted and customary method of compensating employes under the Vacation and Rest Day Rules and
2. The Carrier violated the terms of the Agreement when it required Telegrapher B. F. Norfleet regularly assigned operator-leverman, hours 4:00 P.M. to 12:00 Midnight, Suffolk, Virginia, to take thirteen days' vacation, July 12, 13, 14 15, 16, 1948, and September 24, 25, 26, 27, 28, 29 and 30 and October 1, 1948, paying him for eleven days at the pro rata rate, one day July 13 at the time and one-half rate and refusing payment at time and one-half for September 28, 1948, and
3. The Carrier shall now compensate Claimant Norfleet for September 28, 1948, eight hours at the time and one-half rate.
EMPLOYES' STATEMENT OF- FACTS: Claimant B. F. Norfleet was on the date on which this claim arose, assigned to the second trick operatorleverman position at Suffolk, Virginia. This position required a Sunday assignment of the regular week day hours. Tuesday of each week was the assigned day of rest of the position occupied by Claimant. Claimant had qualified for and was entitled to receive a vacation of twelve consecutive work days with pay during the year 1948. He was relieved for five days vacation on July 12, 13, 14, 15 and 16, 1948. He was paid a vacation allowance of 8 hours at the time and one-half rate of pay for Tuesday, July 13, and at the pro rata rate for July 12, 14, 15 and 16. Claimant was again relieved for the remaining seven days of his vacation on September 24 but was not permitted to resume work until October 2, 1948. He received no vacation allowance for Tuesday, September 28.
POSITION OF EMPLOYES: This dispute is the result of the Carrier's refusal to pay to claimant a vacation allowance of eight hours at the time and one-half rate of pay for Tuesday, September 28 1948, which was excluded as a vacation day by the Carrier while Claimant was on vacation September 24 to October 1, 1948 inclusive. An agreement bearing dates of December 1, 1939, is in effect between the parties to this dispute. Likewise the National Vacation Agreement signed at Chicago, Illinois, December 17, 1941, including the supplements and interpretations thereto is in effect between these parties.
It is the position of the Carrier the instant claim is not supported by the rules relied upon by the Employes, and denial of the claim is respectfully requested.
OPINION OF BOARD: This docket involves a determination of a controversy between G'arrier and Employes with respect to the proper compensation due Claimant for his 1948 vacation. Carrier, in its answer to Employes' original submission, has raised a procedural question It is Carrier's contention that this claim has been prematurely presented to this Board, since it involves a controversy arising out of the interpretation or application of the provisions of the Vacation Agreement of December 17, 1941 and the case has not been submitted to the Committee as provided in Article 14 of said Agreement.
In our opinion Article 14 indicates a clear intention on the part of both parties to the Vacation Agreement that initially matters of this kind should be presented to the Committee referred to therein, and in the event of the failure of that Committee to dispose of the controversy, the matter may then be presented to the appropriate Division of the Adjustment Board. The whole tenor and purpose of the Railway Labor Act is to encourage settlement of difficulties arising between Carrier and Employes by the parties themselves. Such a provision in an Agreement, therefore, is in complete harmony with the Act creating this Board. Were we to wave aside the provisions of the Vacation Agreement and proceed to a determination of this matter without preliminary submission of the same to the Vacation Committee in the face of objection by one of the parties, we believe that we would be going counter to the Agreement itself and to the spirit and purposes of the Railway Labor Act. While we have no desire to cause the determination of this dispute to become protracted nevertheless, despite the fact that we have ultimate jurisdiction, in view of the considerations above expressed, we are constrained to hold that the claim is prematurely before this Board and, therefore, procedurally defective.
The Employes have argued that it would be a waste of time to refer the instant dispute to the Vacation Committee because it had failed to agree on the disposition of a case involving identical facts in February 1947. To uphold the contention of the Employes, in our opinion, would be to write an exception into Rule 14, something which this Board has no power to do. In any event, since February 1947 there have been at least two Awards (Nos. 4032 and 4157) of this Board on very closely related questions. It is hoped that such Awards may have served to crystallize the thinking of the members of the Vacation Committee to the extent that it will dispose of this particular controversy. Accordingly, the claim will be dismissed without prejudice to the parties to refer the same back to this Board if upon further negotiation they are unable to agree, and if thereafter submitted to the Vacation Committee and said Committee is unable to dispose thereof.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: