In view of the fact Mr. Bieniewicz did not question his eligibility for the vacation involved the claim was denied in accordance with the understanding reached between the parties as to the disposition of the case. Copy of denial decision dated August 24, 1962, to General Chairman Christensen is attached and marked as Carrier's Exhibit E.

The General Chairman, upon receipt of the Carrier's decision referred to above, disregarded the agreed-upon understanding between the parties as to the disposition of the matter and ignored the fact, as established at conference among the principals involved, that Mr. Bieniewicz had raised no question as to his eligibility to the vacation in dispute. Under date of September 12, 1962, the General Chairman advised he could not agree with the Carrier's decision; copy of this document is attached as Carrier's Exhibit F.

The undersigned replied to the General Chairman on September 18, 1962. Copy of this letter is attached as Carrier's Exhibit G.

Copy of Agreement effective September 1, 1949, as amended, between the parties is on file with your Board and is, by reference, made a part of this Submission.

(Exhibits not reproduced.)

OPINION OF BOARD: The 1961 vacation schedule was prepared and posted by the Carrier during the early part of 1961. The Claimant's name appeared on the schedule, listing him for a three week vacation in December 1961. He took that vacation, and subsequently, upon a routine check by the Carrier's auditor, it was discovered that he was ineligible for that vacation due to the fact that he had not worked a sufficient number of days in 1960 to qualify. There is no dispute between the parties as to this essential fact. Once his ineligibility was discovered, the Carrier suggested that the Claimant work

during his 1962 vacation to compensate it for the monies paid in 1961. The Claimant refused, whereupon Carrier deducted the amount paid from the Claimant's pay check. The facts developed from the record indicate that immediately prior to taking his vacation in 1961, the Claimant asked his General Foreman if he could work this period, because he thought that lie needed the extra working days to qualify for a vacation in 1962. The General Foreman refused this request and told him to take his vacation as posted. The Claimant never raised any question as to his eligibility for the 1961 vacation.

The Carrier admits that this vacation schedule in question was wrong, that it was a clerical error, but urges upon us the argument that in accordance with the National Vacation Agreement, it was incumbent upon the Claimant to have questioned his own eligibility; that by so doing, he would have displayed that degree of cooperativeness demanded by the aforesaid Agreement. Carrier further contends that the Claimant himself was in the best possible position to know the number of days he had worked and is charged with the responsibility of knowing whether or not he was eligible for the vacation in accordance with the requirements of the Agreement. Carrier further alleges that Claimant was aware of the "true facts" and did nothing to disclose them.

The Organization does not deny that the Claimant was ineligible, but advances the theory that since the responsibility for the preparation of the vacation list rests solely with the Carrier, it was quite reasonable for the Claimant to assume that he was entitled to the vacation once it had been posted. They further point out and the record on this is clear, that Carrier actually required him to take his vacation against his own wishes. The Organization further propounds the proposition that Carrier, by its action in this case, violated Rule 22 of the Agreement, which reads as follows:

"Established working hours of regularly assigned Track and Bridge and Building forces will not be reduced below 8 hours per day, five (5) consecutive days each calendar week other than as provided for in this rule and except that this number may be reduced in a week by such holiday as specified in Rule 24 which occurs within the employes work week."

Further that since the Claimant is a regularly assigned Bridge and Building Carpenter, the above cited rule provides that he must receive not less than (8) hours per day, five (5) days each calendar week. Therefore when the Carrier deducted fifteen (15) days' pay, the provisions of Rule 22 were violated.

Although the Carrier states categorically that the Claimant knew that he was ineligible, it does not offer any evidence to sustain such an allegation. It is true that the Claimant was concerned about his vacation eligibility for the year 1962, but the record is devoid of any evidence that would indicate he intentionally deceived the Carrier in 1961. The burden of proof in this regard quite naturally rests with the Carrier. It is therefore our judgment that Carrier has violated the Guarantee Rule of the Agreement, Rule 22 quoted above, and as a result, we will sustain the Claim as submitted.

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 violated the Agreement.

AWARD