STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railway Clerks that the Carrier violated the provisions of the National Vacation Agreement and of the current Clerks' Agreement:
(a) When, effective as of the year 1951, it failed and refused to grant Mr. Ward E. Marlow and Mr. Lewes Pipkin, Yard Clerks, Denison, Texas, 11-H/a days vacation with pay, and
(b) That Mr. Ward E. Marlow and Mr. Lewis Pipkin shall be granted 1-zia additional work days as vacation days with pay in addition to the ten days which Carrier allowed to these two employes, or that they be paid for such 1-2/a additional days in lieu of vacations if vacations are not actually granted, and
(c) That all clercial employes at Denison, Texas who had one year of service shall receive in the year 1952 and thereafter, 11-2h working days vacation with pay annually until such time as the Agreement between the parties is amended through conference, negotiation and agreement.
EMPLOYES' STATEMENT OF FACTS: Prior to September 1, 1949, effective date of the 40~ffour Week, the Yard Clerks at Denison, Texas were on a seven-day assignment and under Rule 50 of the current Agreement were entitled to two weeks or 14 days vacation without loss of pay .after one year of continuous service.
On July 27, 1949 Memorandum of Understanding was signed by the parties to this dispute reducing days for which an employe is eligible under any vacation rule by one-sixth.
;In 1949 and 1950 those Yard (Clerks at Denison that were eligible for vacations were granted the 14 day vacation less 1/6 or 11-rh days vacation.
In 1951 Mr. Ward E. Marlow and Mr. Lewis Pipkin, Yard Clerks at Denison, were allowed only 10 days vacation.
POSITION OF EMPLOYES: The material facts in this case are not in dispute and involve the action of the Carrier in denying the proper number of days annual vacation to the employes involved herein.
There is in evidence an agreement between the parties bearing effective date July 1, 1921, in which the following rule appears which Employes cite as being in violation:
In this case the claimants were paid the same compensation while on vacation they would have received had they not been granted a vacation, and were granted two weeks vacation without loss of pay in accordance with the provisions and application of Rule 50 of the current agreement.
The carrier submits that the facts and circumstances do not warrant an affirmative award and we respectfully request that your Honorable Board deny the claim.
All data submitted herewith in supuort of the carrier's position has been presented to the employes or their duly authorized representative and is hereby made a part of the matter in dispute.
OPINION OF BOARD: Petitioners contend that by reason of Carrier's unilateral action effective with the year 1951 in arbitrarily reducing the number of vacation days with pay allowed Claimant Yard Clerks to ten days, the Agreement was violated. That prior to September 1, 1949, the effective date of the 40 hour week, Claimants were on seven-day assignments under Rule 32, and received 14 days' vacation annually. This in accordance with Rule 50 reading:
Also citing Memorandum of Understandinv dated July 27, 1949 re: 40-Hour Week Agreement on reduction by one-sixth of number of days. And Exhibits relative to payments made as shawing Carrier's previous interpretation in like situations.
Respondent Carrier contends the rule relied on by Petitioners does not say that employes covered will be granted 14 days' vacation, but states the same as "two weeks vacation without toss of pay," and that the 40-Hour Week Agreement changed the entire concert of a week insofar as labor 6589-6 1058
agreements on railroads were concerned. That under the presented contention that a part of two days which employes are entitled to be "off" and for which they will not be paid because of the shortened work week will be considered as "vacation das" in part and that they will be paid for one and two-thirds of the two "off" days is erroneous. And citing Awards 4032 and 4929 on the proposition that rest days are not vacation davs.
In the Exhibits referred to in Petitioner's presentation (exchange of letters between the Carrier's Vice President and General Manager and the General Chairman of the Organization), it would appear that the parties have placed their own interpretation of Rule 50 as the same applies to this claim and that it is contrary to the position of the Carrier in this dispute.
It would needlessly lengthen this opinion to set out all of these letters herein; suffice to say that one letter will show the position taken, Employes' Exhibit 4:
Also see Employes' Exhibit 10, letter dated April 6, 1951, from Mr. W. A. Carpenter, Vice President & General Manager of Carrier to Mr. O. 0. Bretches, Agent, Denison, Texas, with copy to General Chairman Moore.
By reason of such interpretation placed on Rule 50, we feel that Claims (a) and (b) and (c) should be sustained.
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 Emploves involved in this dispute are respectively Carrier and Employes within the meaning of the Railwav Labor Act, as approved June 21, 1934: 6589-7 1059