THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen of America on the Louisville and Nashville Railroad Company that:
EMPLOYES' STATEMENT OF FACTS: Mr. M. Kelley is employed as Signal Maintainer with the Carrier, with headquarters at Hazard, Ky. He was assigned a vacation period from January 7, 1957, through January 28, 1957, and received his vacation as assigned. Mr. R. Smith is employed as Signal Helper and is regularly assigned to work with Signal Maintainer Kelley, with headquarters at Hazard, Ky. Signal Helper Smith was assigned a vacation period from January 7, 1957, through January 18, 1957, and received his vacation as assigned. The Carrier did not assign a vacation relief man to Signal Maintainer Kelley's territory during the time that he and Signal Helper Smith were on vacation, but required Signal Maintainer Paul Pennington and Signal Helper M. Clemons, Jr., who are regularly assigned to the adjacent signal maintenance territory at Krypton, Ky., to assume the responsibilities and duties of Signal Maintainer Kelley's signal maintenance
OPINION OF BOARD: This dispute involves an alleged violation of an Agreement between the Louisville and Nashville Railroad Company and two of their employes represented by the Brotherhood of Railroad Signalmen of America. The claim of the General Committee of the Brotherhood of Railroad Signalmen of America alleges that:
Signal Maintainer M. Kelley and Signal Helper R. Smith, were assigned headquarters at Hazard, Kentucky, and the Claimants, Signal Maintainer Paul Pennington and Signal Helper McKinley Clemons, Jr., were assigned headquarters at Krypton, Kentucky. The two territories adjoined.
The Kelley-Smith and the Pennington-Clemons work hours were identical-Monday through Friday, seven o'clock A. M. to four o'clock P. M., with one hour for lunch.
Kelley was entitled to three weeks vacation and started his vacation on January 7, 1957 and returned to work on January 28, 1957. Smith started his vacation on January 7, 1957, and since he was only due two weeks vacation, returned to work January 21, 1957.
During the absence of Kelly-Smith on vacation, Pennington-Clemons performed work on the Kelly-Smith territory and the claim states that this total of work amounts to seventy-four (74) hours and twenty (20) minutes. The claim further states that this is more than twenty-five (25g'o) percent of the work load of the vacationing employes.
The employes claim that Rule 10(b) of the Vacation Agreement has been violated. The rule reads:
At record page (33) the Organization asserts that the Claimants performed thirty-seven (37%) percent of the work load and enumerate this work as follows: 19761-21 628
The Carriers contend that Rule 10(b) of the Vacation Agreement was not violated and that (1) the Organization has totally failed to show that the Claimants performed more than twenty-five (25%) percent of the vacationing employes' work, (2) that there is no justification for the monetary feature of the claim, (3) that Article (6) of the 1961 Vacation Agreement applies. Article (6) reads as follows: 10761-22 629
and (4) the Carrier maintains that under the terms of Article (6) that Carrier is not obligated to provide a vacation relief worker unless the failure to do so creates a burden on the employes remaining on the job. Carrier maintains that the record shows that the performance of this vacation work in no manner created a burden on the Claimants.
Signal Helper Smith returned to work on January 21, 1957. The Organization claims that Signal Helper Clemons worked eight hours on January 22, 1957 and five hours and ten minutes on January 25, 1957, performing vacation work on the Hazard territory. If Signal Helper Clemons did work on this territory on these dates he was not performing vacation relief work as the Signal Helper Smith had returned from his vacation.
The record discloses at Page (25) that on January 8, 1957, only eleven (11) rails were laid and that this work was done between the hours of seven o'clock A. M. and nine o'clock A. M. Therefore, only two hours could validly be charged to this work whereas the Claimants set out eight hours.
It is the opinion of this Board that the claim on behalf of Signal Helper M. Clemons, Jr., be denied. While Signal Helper Smith was absent on vacation he missed a total of eighty hours work. Thus, when we apply Article 10(b) to these facts it is evident that Carrier can properly assign less than twenty hours of the disputed work to Signal Helper Clemons. If we deduct from the thirty-seven hours claim six hours for work claimed on January 8, 1957, eight hours for work claimed on January 22. 1957, and five hours and ten minutes for work claimed on January 25, 1957, we will be deducting nineteen hours and ten minutes. Deducting this figure from the thirty-seven hours and ten minutes claimed, there is left only sixteen hours of vacation relief work done by the helper which is well within the established twenty-five (25%) rule. In addition, the helper was paid for his full time and there is no showing that as a result of the vacation relief work which he did that there was any undue burden placed upon him on his own territory.
Both sides rely and quote freely from Referee Morse's interpretation of both Rule 10-(b) and Rule (6) and this Referee has studied Referee Morse's interpretation of the rules very carefully and feels that the findings contained herein with reference to Signal Helper Clemons are consistent with Referee Morse's interpretations.
The claim of Signal Maintainer Paul Pennington presents a slightly different set of facts. The claim includes travel time consumed by this Claim- 10761-2a 630
"The term `work load' as used in Article 10 (b) is synonymous with work, duties, tasks, quantity job assignments."
* * It cannot have been intended to cover deadheading, which all agree is not service, in the sense that term is commonly used and understood. We think it may fairly be assumed, that, in entering into the Agreement, the parties thereto were fully cognizant of the distinction between service and deadheading, and worded their agreement with that distinction in mind."
"Article 10(b) states clearly that not more than the equivalent of twenty-five percent of the work load of a given vacationing employe can be distributed among fellow employes without hiring a relief worker unless the same is agreed to by the local union committee or official. From the record before us there is indication the amount of time Claimants performed services on the vacationing employe's territory would not exceed twenty-seven hours. The balance of time claimed consists of time consumed in travel from Claimants' headquarters to the employe's territory and return to their own territory, plus time consumed by the Claimants in keeping up the work on their own territories. A reference to the Interpretations of Article 10 (b) of the Vacation Agreement by the Referee does not lay down a hard and fast rule that the twenty-five percent figure shall apply as an exact mathematical yardstick in measuring distribution of work. We believe it was the intent of the parties in negotiating Article 10(b) that work load as referred to, applies to work performed on the vacationing employe's territory. If the parties had so intended to include time consumed in travel from one territory to another, the parties would have agreed to such a provision. This 10761-24 631
In addition we do not think there is any showing in the record that the performance of the vacation work created a burden on the Claimants. 10761-25 632
FINDINGS: The Third Division of the Adjustment Board, 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
The majority, consisting of the Carrier Members and referee, went much further than necessary to make a case for the Carrier. This fact is demonstrated by their ignoring Rule 60 of the Agreement between the parties and their citation of Award 6400, 10005, and 10007, all by Referee McMahon, and particularly by their citation of First Division Award 9572, concerning deadheading. There is no deadheading involved in this case. The "traveling time" involved here clearly comes under the provisions of Rule 60 of the Agreement which provides that: