TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
OPINION OF BOARD: This Carrier, by Bulletin No. 52, dated November 9, 1960 requested all Agents and Operators to file vacation request blanks not later than December 15, 1960.
Carrier's bulletin advised that once an employe is assigned a certain date for vacation for 1961, "the vacation must be taken starting on that date . . ."
The Local Committees met with the Carrier representatives and on December 21, the vacation schedule and assignments for 1961 were sent to all employes.
Claimant Tucker was scheduled for vacation beginning December 11. Organization asserts that "without notice to the employes, the Carrier according to its own statements, allowed Mr. Tucker to count a period beginning July 10th as 6 days of his vacation and a period beginning September 12th as the 12 additional days of his vacation. The Carrier did not notify the Organization that it was advancing the vacation vacancy of Claimant Tucker nor did it allege that there was a good and sufficient reason growing out of the essential service requirements and demands that brought about the change in the vacation of Claimant Tucker . . .
The assignment of Tucker to start his vacation December 11, 1961 was advertised to all Agents and all Operators by Carrier bulletin dated December 21, 1960.
However, the occurrence upon which the claim is predicated-the advancement of Claimant's vacation-the six days in July and 12 days in September when Claimant Tucker, "of his own volition requested and was granted permission to take"-did take place beginning July 10, 1961.
The Organization filed its claim with the Carrier on December 30, 1961 which is clearly beyond the sixty day limit imposed by the August 21, 195-1 Agreement.
FINDINGS: The Third Division of the Adjsutment 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.
I must emphatically disagree with the finding of the majority that the "occurrence" on which the claim was based, was in fact "the advancement of Claimant's vacation," or that any "cause of action" occurred prior to December 11, 1961.
This was not an ordinary case of advancing a vacation in a gesture of co-operative good will. The Carrier laid down stringent rules, applicable to all employes on the district, to the effect that a vacation once assigned would positively not be advanced, deferred or split. The Employes accepted those written conditions, thus making a binding agreement consistent with the provisions of Article 4 (a) of the Vacation Agreement. In accordance with that agreement the vacation in question was scheduled for December 11, 1961.
When that date was reached in the passage of time, and the vacation was not provided, the Employe representative learned that the Carrier had permitted this vacation not only to be advanced but also taken in two installments, both contrary to the conditions previously set out in writing and accepted by the Organization. The cause of action certainly arose on December 11-the District Chairman had no reason to suspect that Tucker's absences in July and September were anything other than ordinary lay-offs -and the claim was filed on December 30, well within the 80-day limit provided by Article V of the August 21, 1954 Agreement.
The precise point has once before been involved in a decision by this Division: Award 14752. Failure of the majority to either follow or distinguish this precedent award constitutes palpable error, and I dissent.