BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OR CLAIM: Claim of the System Committee of the Brotherhood that:
JOINT STATEMENT OF FACTS: 1. Mr. O. C. Shepard was granted a leave of absence on September 18, 1950, for the purpose of enlisting or being inducted into the armed forces of the United States.
At the time Mr. Shepard was granted leave of absence, he held a regular assignment on a position covered by the Schedule for Clerks. The daily rate of that position at the time he was granted the leave of absence was $13.82.
During the calendar year of 1950, and during preceding years, Mr. O. C. Shepard had performed compensated service on a sufficient number of days to qualify for a vacation of ten (10) working days with pay during the calendar year of 1951.
Mr. Shepard was in the armed forces throughout the calendar year of 1951, and he was paid an allowance in lieu of vacation on the payroll for the last half of December 1951, in the amount of $138.20, i.e., ten (10) days at
If an employe assigned on a position bulletined as the result of an employe being absent from the service for more than thirty (30) days is displaced by the return of the employe whose absence created the original vacancy, he shall have the privilege of exercising either of the following options:
The positions occupied by each of the three claimants at the time they entered the armed forces were bulletined in accordance with the above-quoted rule and it is, therefore, obvious that the claimants named in the Committee's Statement of Claim were in the status covered by Article 7, Paragraph (e), of the Vacation Agreement of December 17, 1941, throughout the calendar year of 1951, and that the vacation allowance which they have been paid is proper under the applicable rules.
The contentions of the Committee should be dismissed and the claim denied.
The Carrier affirmatively states thin the substance of all matters referred to herein has been the subject of correspondence or discussion in conference between the representatives of the parties hereto and made a part of the particular question in dispute.
OPINION OF BOARD: During 1950 and preceding years the Claimant, Sheppard, performed sufficient service to be entitled to ten days' vacation and/or pay in lieu thereof, in the calendar year 1951. On September 18, 1950, Sheppard was granted a leave of absence to enter the military service, where he remained until 1952 when he resumed his position with the Carrier. The daily rate of Sheppard's position was $13.82, but between February 1 and July 1, 1951, basic wage rate increases and cost of living adjustments were made with respect to the position, aggregating an additional $1.56 per day. In December, 1951, Carrier paid Sheppard $138.20, in lieu of his vacation, for that year, based on the average daily straight time compensation earned by him in the last pay period before he entered the military service. The Claim is that his vacation pay should have been calculated so as to take into account the wage and cost of living increases which became effective between February 1 and July 1, 1951. Sheppard returned to his position with the Carrier in 1952. 6742-7 556
The Claims of King and Cole are similar, except as to dates and wages and the further facts that King was only entitled to five days' vacation in 1951 and that he was still in military service when the record before us was closed.
Both parties rely on Article 7 of the National Vacation Agreement of December 17, 1941, the Claimants on sub-sectidn (a) thereof, and the Carrier on sub-section (e). Article 7 reads in its entirety:
Manifestly, sub-sections (b), (e) and (d) of Article 7 have no application here and it becomes our duty to interpret and apply (a) and (e) in such a manner as to give full force and effect to each and avoid a conflict between them, if that can be consistently done.
It is to be noted that 7 (a) is concerned with the total daily compensation paid by the Carrier for the assignment, while 7 (e) deals with the average straight-time compensation earned by the employe for a lesser period. This leads us to the conclusion that 7 (e) is to be regarded as in the nature of an exception to 7 (a). The Claimants while on leave of absence in military service were not regularly assigned when their vacation pay was determined and, therefore, come within 7 (e) rather than 7 (a). So construed, 7 (a) and 7 (e) may be harmonized and a conflict avoided.
The facts of this case bring it under 7 (e), and a denial of the claim is required.
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 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; alnd