STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Railway, that:
EMPLOYES' STATEMENT OF FACTS: There are in full force and effect various collective bargaining agreements entered into by and between Southern Railway Company, hereinafter referred to as Company or Carrier, and The Order of Railroad Telegraphers, hereinafter referred to as Employes or Telegraphers. All agreements are on file with this Board and are, by reference, included in this submission as though set out herein word for word.
This dispute arose when Carrier failed to pay to Mrs. E. R. Lacy, widow of E. R. Lacy, deceased, the vacation allowance earned in 1953 and due in 1954. The claim was presented and handled on the property in the usual manner and in accordance with the Railway Labor Act, as amended, to the highest official designated by the Carrier to handle such disputes. The claim was not adjusted, in accordance with the Agreement, and constitutes an unadjusted dispute between Employes and Carrier.
This Board has jurisdiction of the parties and the subject matter under the Railway Labor Act, as amended.
E. R. Lacy entered service of Carrier on the 1st day of July, 1913, and retained continuous employment status during the time herein involved. He was, at the time of his death, September 4, 1953, employed as first shift telegrapher, Appalachia, Virginia. The hourly rate of pay at that time was *1.90 per hour.
because the service performed "in the year of his death" (1953) was prior to the effective date of the amendment.
This claim should be denied for the reasons stated, and Carrier respectfully requests that the Board so hold.
All pertinent facts and data used by the Carrier in this case have been made known to the employe representatives.
"There is no dispute between the parties as to the essential facts and circumstances involved in this case. The sole issue in dispute is whether or not Article I, Section 5 of the August 21, 1954 agreement is applicable in the case of an employe who died in 1953. If it is applicable, the claim must be sustained. If it is not, the claim must be denied. * *"
"It is evident in this case that the organization has misinterpreted the provisions of Article I, Section 5, of the August 21, 1954 agreement, particularly the language 'who performed the necessary qualifying service in the year prior to the year of his death, or in the year of his death, or both.' This language applies only to employes who die on or after January 1, 1954. There is no question about the fact that Air. Lacy rendered 133 or more days of compensated service in the year of his death (1953), but this does not make him subject to the amended provisions of Article 8 which did not become effective until January 1, 1954, three months after his death. Almost eight months of 1954 had elapsed when the parties amended the 1941 Vacation Agreement. * * *"
"* * * an employer-employe status was essential before one cou'd claim benefits under this Agreement. The termination of this relation prior to the taking of the vacation freed the Carrier of any obligation assumed by it under the Vacation Agreement regardless of the cause of termination-death, resignation or dismissal. This was the situation which existed at the time decedent in this case died on September 4, 1953."
"The Carrier agrees that the right of a widow of a deceased employe to recover vacation pay earned and not received by him is contingent upon his dying in the year 1954, * * *:"
The latter contention is rejected, as is Carrier's contention that the amendment to Section 5 became "effective as of January 1, 1954."
The contracting parties stated very clearly that the amendment in question was to be
dies before receiving "such vacation * * * or payment in lieu thereof" payment "shall be made" to his surviving widow, etc.
Being effective for the vacation year of 1954, the language of this amendment clearly entitles claimant widow to the 1954 vacation equity her husband admittedly earned by his service prior to his death on September 4, 1953.
While we have been advised by the Board Members arguing this case that the issue here involved has not heretofore been ruled on by this Division, it was ruled on in two identical claims by Awards 2166 (Carter) and 2245 (Wenke) of the Second Division. Both were sustaining Awards.
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; 8387-2'0 294