STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On May 21, 1951, W. G. Eikel entered service of the Carrier as an Extra Gang Laborer. He was cut off at different intervals during the year of 1951, but did render compensated service for the Carrier on at leas; 133 days in other work classifications coming within the scope of the instant Agreement.
Request was made for a vacation for claimant Eikel during the year 1952. Carrier refused to allow this vacation and likewise, has declined to allow Mr. Eikel pay in lieu thereof.
The Agreement in effect between the two parties to this dispute, dated September 1, 1949, and subsequent amendments and interpretations are by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: As pointed out in the Employes' Statement of Facts, W. G. Eikel entered the Carrier's service on May 21, 1951 as an extra gang laborer and performed one hundred and thirty-three (133) days of compensated service (luring that year as will be noted from the following quoted letter, signed by Superintendent O. L. Grain:
which terminated July 31, 1951, as required by Rules 28 and 30 of Article III of Agreement No. DP-173.
All data submitted in suport of carrier's position have been heretofore submitted to the employes or their duly authorized representatives.
The carrier requests ample time and opportunity to reply to any and all allegations contained in the Brotherhood of Maintenance of Way Employes', System Committee's and Employes' submission and all pleadings.
Except as herein expressly admitted, the Missouri-Eansas-Texas Railroad Company expressly denies each and every, all and singular the allegations of the Brotherhood of Maintenance of Way Employes, System Committee of the Brotherhood, and Employes' alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Railroad Company respectfully requests the Third Division, National Railroad Adjustment Board, deny said claim, and grant said Railroad Company such other relief to which it may be entitled.
OPINION OF BOARD: At the outset, it is argued on behalf of Carrier that the claim in the instant case is barred by Article 24, Rule 2 reading as follows:
However, because Carrier did not raise this issue while the case was being handled on the property, it cannot raise the issue now and we shall proceed with the merits of the claim.
W. G. Eikel entered Carrier's service as an extra gang laborer on May 21, 1951. Carrier concedes Eikel worked a total of 133 days in 1951, but points out his first employment was as a laborer in an extra gang on May 21, 1951. Carrier states he was then "temporarily employed" and is not, according to its view entitled to credit for the 24 days he worked in that extra gang. When that gang was abolished on June 22, 1951, Carrier asserts Claimant's employment "was permanently and finally terminated on that date." It takes the same view with respect to 5 days Claimant worked as an extra laborer in July.
His next work period started on August 1, 1951 when, Carrier asserts, he "was again newly employed and regularly assigned as a laborer." Carrier does credit his work service from August 1 forward, a total of 104 days, which, Carrier points out, was short of the 133 days required in order to qualify for a vacation in 152.
Carrier's position is that termination of a temporary employe's services within the first 60 days cowpletely severs his employment relationship with the Carrier so that such employe's days of temporary service during such periods could not be preserved and added together in order to make up the number of qualifying days of -compensated service necessary to entitle him to a vacation in the following year.
Argument is offered on behalf of Carrier that an employe is considered a temporary employe for the first 60 days of his service. Article 2, Rule 2 is quoted:
"Since under this rule the Claimant's original seniority date, and hence his continuous employment relationship with the Carrier, could not extend back into the period when he performed temporary service, the 29 days' service which he performed as a temporary employe could not be considered as having been performed in one continuous term of employment as the parties agree it must tie in order to qualify for a vacation. We rightly understand that it is not necessary that the 133 days' service be continuous. They may be sporadic as long as they are performed while the employes maintain a continuous employment relationship."
Other rules of the Seniority Article are quoted on behalf of Carrier, leading to the argument by Carrier member that "Claimant's bare allegation that he has complied with Rule 25 is irrelevant because that rule by its terms did not apply to him prior to his performance of service in eleven consecutive months following his regular assignment. Consequently we must conclude that the Claimant has failed to bring himself within the coverage of paragraph (1) (a) of the interpretation to Article 8 of the National Vacation Agreement because it is clearly evident that under the rules of the Agreement he had no rights to be recalled during the period of his temporary service. In accordance with that interpretation, his employment relation was terminated on June 22 and July 31, 1951. Tat being so, the service performed by him during those periods could not be preserved, accumulated and then added to his service under a regular assignment to satisfy the 133 day requirement prescribed by Article 1 of the National Vacation Agreement."
Organization's position is, stated simply, that the Claimant had 133 days of compensated service in the calendar year 1951 and was entitled to a vacation of five consecutive work days in the following year of 1952.
It is argued on behalf of Organization that "Carrier's contention, that an extra gang employe who is cut off from time to time does not maintain his employment relationship, is completely untenable."
Article VIII of the Vacation Agreement upon which Carrier relies reads as follows: 7848-7 600