THIRD DIVISION
(Supplemental)
5. Serious impairment to the service would result and programming of vacations would be disrupted.
6. Collateral advantage is prohibitive under the Vacation Agreement, which is the basic objective of Petitioner in this case, and is inconsistent to Article 1, Section 3 of the August 21, 1954 Agreement, and Rule 26(i), Supra.
It is the burden of the Petitioner to come before your Honorable Board with a positive claim fully supported by rules and not merely an assumption that the Agreement has been violated. The Carrier is confident that your Honorable Board will readily agree that the Petitioner cannot present any evidence to support its position, and that the Carrier's position is fully tenable. Furthermore, the Carrier is confident that your Honorable Board will agree that the foregoing data presented by the Carrier is fully supported by rules, fact, and by practice; consequently this dispute filed by the Petitioner should be denied in its entirety.
For the record, other claims between the parties on the property involving same subject are to be settled on the outcome of the instant dispute.
All data and arguments contained herein have been presented to the Petitioner in conference and/or correspondence.
OPINION OF BOARD: The basis of this claim lies in the Carrier's denial of the request of thirty-one named Claimants that they be permitted to start their agreed to 1955 vacations on a Tuesday following either the Memorial Day, July 4th or Labor Day holiday.
Although the undenied and undisputed facts cited above give substantial factual support to the Organization's position-we will, nevertheless, continue our deliberations to an even more conclusive result.
The Carrier contends that its actions were fit and proper and in keeping with the provisions of Article I, Section 3 and Rule 26 (i).
If Article I, Section 3 is controlling, as the Carrier contends, why did the Carrier follow the dictates of Article 4(a), supra, and agree with the Local Committee to have the Claimants start their vacation on a Tuesday following one of the designated holidays? The obvious answer is that the Carrier recognized the fact that, in keeping with the language of Article 4(a), it must cooperate with the Local Committee in assigning employes' their vacation schedules.
In this instance, the Board is properly left with the impression that the Carrier attempted to go in opposite directions at the same time.
The truth of the matter is that the language of Article I, Section 3, does not support the Carrier's position. Section 3 begins as follows:
Here the key work is the preposition-during! (Emphasis supplied). What does the word "during" mean? The Fourth Edition of Black's Law Dictionary defines "during" as: "Throughout the course of; throughout the continuance of; after the commencement and before the expiration of; "Webster's (Unabridged) Third International Dictionary defines the word "during" as: "1. throughout the continuance of; 2. at some point in the course of."
From the definitions of the word "during", supra, it is obvious that the provisions of Article I, Section 3 can only become operative when a holiday occurs after a vacation period has begun and before it is concluded which is not the situation in the instant case.
The undisputed fact that the Carrier agreed to start the Claimants' vacations on a Tuesday following the designated holidays, unmistakably indicates that the Carrier recognized that the Monday holidays did not occur during the Claimants' vacation periods. The holidays in question might be looked upon as extensions of the Claimants' rest days.
For the answer to the Carrier's contention that vacations must start "on the first day on which the assignment is bulletined to work"-we turn to the record, but can find no support in any of the pertinent rules for this position.
The record reveals that the holidays in question were holidays for the Claimants; no work was scheduled for or assigned to the Claimants on the holidays in question; consequently, it cannot be claimed that their positions were bulletined to work-in keeping with the provisions of Rule 26(i). Thus it must logically follow-both contractually and factually-that the designated holidays were not part of the Claimants' vacation period.
Although we do not believe that other supportive data are requiredit can readily be gleaned from the Carrier's Engineering Department's 1956 10553-32 604
Vacation Schedule for Maintenance of Way Employees. That Schedule shows nearly 30 employes starting their vacations on the Thursday following July 4th; and 3 starting their vacations on the Tuesday following Labor Day.
In reaching our decision in this case we relied solely and completely on the record. Although we read and analyzed the awards the disputants presented, we found no need for outside support. Accordingly, this case was decided on its merits and its merits alone.
From the facts stated above we must conclude that Article I, Section 3 and Rule 26(i), supra, do not support the Carrier's position in the instant case. Accordingly, we must hold that the Carrier violated the Agreement as charged.
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; and
CARRIER MEMBERS' DISSENT TO AWARD NO. 10553
DOCKET NO. MW-8936
Award 10553 is in error because, among other things, it is based upon an interpretation of Article 4 (a) of the 1941 Vacation Agreement without regard for other portions thereof or for what has transpired subsequently; it ignores the fact that that which it now grants by interpretation was specifically rejected to the Employes in consummation of the August 21, 1954 National Agreement; it fails to follow precedent awards without showing palpable error therein, and it grants a second day's pay for Memorial Day or Labor Day which was not worked notwithstanding that no rule of the Agreement between the parties provides therefor.
Award 10553 erroneously holds that "The undisputed fact that the Carrier agreed to start the Claimants' vacations on a Tuesday following the designated holiday unmistakably indicates that the Carrier recognized that the Monday holidays did not occur during the Claimants' vacation periods. 10553-33 605
The holidays in question might be looked upon as extensions of the Claimants' rest days."
In the instant case the parties co-operated in the assignment of the vacations in compliance with Article 4(a) of the Vacation Agreement and the fact that Carrier refused Claimants demand for preferential treatment did not constitute a refusal to co-operate and is in compliance with Section 3 of Article I of the Agreement of August 21, 1954. See Award 10593 (Hall).
In addition, Article 4 (a) must be read in light of the meaning of Article 1, Section 3 of the August 21, 1954 National Agreement, which latter was agreed to as a result of a report of an emergency board which rejected the following proposal included in a notice dated May 22, 1953, served on this and other Carriers by the Petitioner herein and by other non-operating organizations:
In discussing that proposal in relation to another proposal made by the Employes, the Emergency Board stated:
For these reasons, among others, Award 10553 is palpably wrong and we dissent.
Set forth in the Opinion are thirteen controlling facts which neither party disputed or denied. The decision is based on those controlling facts. Consequently, the decision cannot be wrong.