was scheduled (also several months prior to and following that month) and who was paid twelve-thirtieths (12/30) of the monthly rate of his last regular assignment, as vacation allowance. Mr. Shay performed no service whatever for the Carrier during the month of June 1949, yet the Employe's Statement of Claim includes a claim for two additional days pay for him. Clearly this is a claim for fourteen days vacation with pay, whereas the Vacation Agreement provides only twelve days vacation with pay. In Mr. Shay's case, as in the others, no provision in the agreements between the parties supports the claim presented here.
The Carrier affirmatively states that the substance of all matters referred to herein has been the subject of correspondence or discussion in conference between the parties hereto and made a part of the question in dispute.
OPINION OF BOARD: The question presented by this docket is whether Sundays and holidays should be regarded as "work days" within the employes vacation time.
That the question should be answered in the negative is so well established on this Division now, that it is no longer open to dispute, unless some unusual situation develops, which has not heretofore been covered by the numerous favorable awards on this subject. See Awards 3998, 4003, 4238, 4323 and 5204 as examples.
The Carrier makes a point of the fact that some of the claimants have died while this matter has been pending. We are aware of course, that in some instances this may become a sort of a "nuisance" problem with the Carrier where the deceased left little or no estate outside of the claim, but since the Organization assumes full responsibility in that regard, we need not be concerned with it.
F7NDINQS: 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, fords and holds:
That the Carrier and the Employes 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
There is no "nuisance" problem involved here as the Opinion holds in a passing fashion. It is a clear question of law and it has been erroneously dealt with. That question was not met even if the holding here purports to establish an indemnity running from the organization to the carrier, saving the latter harmless, for we cannot create such a legal relationship between the petitioner and respondent in the first place.
Our statutory authority limits us to disputes between an employe or group of employes and a carrier or carriers. A dead man is not an employe and we have no authority to order the payment of funds to the estate of any decedent nor to any representative of such an estate.
Assuming, arguendo, that the right to a vacation does not abate with the death of the holder of that right, the Congress did not make any provision for abatement and revivor in the Railway Labor Act by which it created this Board. We have recognized that we cannot supply that omission. In Award No. 246 (Fourth Division) the claimant died while his cause was pending but before the Board made the award, and an executrix of the decedent's estate having requested the Board to revive the matter in her name and the substitution having been denied, that award held "Since the Congress did not make any provision in the Act for revivor, we have no authority to insert such provision.
In Award No. 15472 (First Division) the claimant there had died while the case was being progressed. That award dismissed the cause, holding: "There is no claimant in being and his estate has not come into tis cause."
The award for the named, living claimants is predicated upon a mere statement of the question involved with a reference to previous awards upon the same or a similar question. In those cases the claims were sustained although, as here, Sundays and holidays were regular compensation days for the monthly rated employe-claimants. When an employe is granted complete vacation from his weekday. Sunday and holiday responsibilities for which he is compensated on a month to month basis, reason would dictate that the escape from responsibility and immediate availability on Sundays and holidays is just as much a part of his vacation as his release from those same things on the other days in his monthly work. Therefore, a prior award is of no more control as precedent than the soundness of the reasoning upon which it is based.