STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Tennessee Central Railway Company that J. R. Tarpley, extra operator-clerk, who was available but who was not used to provide vacation relief service on the operator-clerk position at Crossville, Tennessee, August 1, 2, 4, 5, 6, 7, 8, 9, and 11, 1949, shall be compensated for 8 hours on each of those dates at the rate of $1.26 per hour as a result of the Carrier's action in depriving Claimant of work to which he was entitled on the seniority basis.
EMPLOYES' STATEMENT OF FACTS: On February 28, 1949, Carrier issued a vacation assignment circular showing the assigned starting dates of the 1949 vacation periods for Agents, Agent-Operators and OperatorClerks. The circular also showed the number of vacation days to which the employes were entitled.
W. A. Johnson regularly assigned Operator-Clerk at Crossville, Tennessee, was assigned a starting date as of August 28, 1949, for his 12 days' vacation period. After the issuance of the vacation assignment circular on February 28, 1949, the assigned starting date of Operator-Clerk Johnson's vacation period was advanced to August 1, 1949.
R. C. Vaughan, unassigned Operator-Clerk, with a seniority date of October 30, 1948, was used to relieve Operator-Clerk Johnson at Crossville, Tennessee, commencing August 1, 1949, and continued to fill the position up to and including August 11, 1949 (except rest days) at which time he was transferred elsewhere and relieved at Crossville by Operator-Clerk J. R. Tarpley, the Claimant in this case. The Claimant herein completed an assignment at Monterey, Tennessee, at 6:00 A. M., on July 28, 1949.
The Claimant J. R. Tarpley, with a seniority date of October 10, 1947, and senior to Operator-Clerk R. C. Vaughan, was unemployed, available and ready for service on August 1, 1949, and remained idle until August 12, 1949.
Time claims filed by :he Claimant for August 1, 2, 4, 5, 6, 7, 8, 9, and 11, 1949, were declined by the Carrier.
POSITION OF EMPLOYES: An agreement, bearing effective date of May 1, 1924, is applicable between the parties to this dispute.
The claim involved in this dispute arose as a result of the Carrier's action in not permitting the Claimant herein to fill a temporary vacancy in
withstanding the fact that it has been shown conclusively that the filling of a vacation absence is not governed by the provisions of Rule 17 (g).
1. Arrangement for relief of vacationing employe reasonably in advance of the commencement date of the vacation was proper,
2. When the arrangement was made, the employe instructed to fill the vacation absence was at that time the senior available unassigned qualified employe.
4. Article 12 (b) of Vacation Agreement provides that "such (vacation) absences from duty will not constitute 'vacancies' in their positions under any agreement."
5. As a vacation absence does not constitute a vacancy in the position under any agreement, any agreement rules governing the filling of vacancies cannot be applicable to the filling of a vacation absence.
6. Notwithstanding the inapplicability of Rule 17 (g) of rules agreement in the filling of a vacation absence, the awarding of the work to the senior available unassigned qualified employe reasonably in advance of the commencement date of the vacation absence conformed to the provisions of the said rule.
7. Claimant made no effort to secure the work in question until after relieving employe had begun work and then requested to displace on the second day of the vacation absence for which there is no support under rule or practice.
8. Provisions of neither rules agreement nor vacation agreement was violated.
OPINION OF BOARD: This is a seniority case. Involved is an interpretation of the Vacation Agreement and the seniority rules of the parties.
The agreed facts are that the Carrier assigned an employe, R. C. Vaughan, junior to claimant, J. R. Tarpley, to relieve another employe who began his vacation on ?.ugust 1, 1949. The claimant had been filling a vacancy of unknown duration and was released some time prior to 10:00 P. M., July 29, 1949, when the assigned man returned. On August 1, at 1:30 P. M., claimant advised the chief dispatcher he was available and that he wished to displace the employe junior to him who had already begun the vacation relief. This request was refused, Vaughan was laid off on account of sickness on August 1:., 1949, and the remainder of the vacation absence was filled by claimant.
First: The relevant provisions of the Vacation Agreement and the effective roles of the part'es are as follows:
Second: It is undisputed that in accordance with Rule 4 (a) of the Vacation Agreement all employes of the Telegraphers' Organization were circularized for choice of vacation periods, and after a conference with the General Chairman of the Organization, a vacation assignment circular was issued on February 28, 1949.
Vaughan had been instructed well in advance of August 1 1949 to file the vacation period choice involved. At the time he was notified to file the vacation absence, he was the oldest qualified man on the extra board. Claimant was at the time of such notification filling a vacancy of unknown duration.
Third: The primary issue in this case is whether the provision of Rule 12 (b) of the Vacation Agreement, that a vacation absence will not constitute a vacancy in the position under any agreement makes inapplicable Rule 17 (g), which requires that seniority be observed in filling a temporary vacancy of less than 30 days.
In Award 5192 of this Division, this issue, involving the same parties and the same employes, was decided adversely to the Organization. We there said:
The Organization claims this holding of Award 5192 is erroneous on the ground that when the Vacation Agreement conflicts with the current Agreement, the current Agreement must prevail until such time as the parties may negoiate a change comparing the conflict between the two rules. It relies particularly on Awards 2340, 3022 and 5048.
We have carefully examined the awards in question. We believe they are sound in principle, but all of them are clearly distinguishable The issue in these awards was whether overtime rates should be paid under certain circumstances. The rule clearly called for payment of overtime rates. 5461-19 623
The Carrier relied on provisions of the Vacation Agreement, that vacations should be given without assuming greater expenses. This Board held that the rules should control.
The Vacation Agreement contains no express provisions abrogating the overtime penalty provisions of the schedule agreement of the parties. Accordingly we have held that the scheduled agreement controls.
The Vacation Agreement, however, makes express provision as to the application of seniority in providing for relief on vacations. Rule 12 (b) not only provides that "absence from duty will not constitute 'vacancies' * * * under any agreement," but requires only that "effort will be made to observe the principle of seniority." The rules do not deal specifically with the subject of applying seniority to vacation relief.
Under these circumstances, we believe that our prior awards would compel a holding that the Vacation Agreement is controlling.
Fourth: The only remaining issue is whether the Carrier complied with the requirement of Rule 12 (b) of the Vacation Agreement that "effort will be made to observe the principle of seniority". When Vaughan was assigned to relieve, he was the seniority employe on the extra board. Claimant did not advise the chief dispatcher of his availability until the very day when the relief assignment began and not until some hours after Vaughan had taken over. We believe the Carrier fulfilled its obligation under Rule 12 (b).
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respeotively 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