THIRD DIVISION
(supplemental)
DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY
balance of his vacation starting August 25, 1964, and ending September 4, 1964.
Wallace was paid time and one-half for working August 17, 18, 19, 20, 21 and 24 plus one day at pro rata for vacation allowance on those dates and was also allowed one day pro rata vacation allowance August 25, 26, 27, 28, 31, September 1, 2, 3 and 4, 1964, in accordance with the Vacation Agreement, and claim as presented was denied.
OPINION OF BOARD: Claimant was assigned a 1964 vacation period of three weeks (fifteen consecutive work days), to commence on August 17 and run through September 4, 1964. On August 13, 1964,four days prior to the date Claimant was scheduled to begin his vacation, Carrier advised him that he would have to work his vacation because there was no relief available. At the same time he was also notified that Carrier might be able to relieve him at a later date so that he might take part of his vacation. Based upon such advice from the Carrier, he worked his position commencing on August 17 and continued to work until August 24th. Upon reporting for work on this latter date, he found a message from Carrier's Superintendent's Office advising that he was relieved for the remainder of his vacation beginning August 2.5, 1964 and continuing for nine days thereafter.
The record before us shows conclusively that the Claimant was paid for the first six days he worked of his originally scheduled vacation at time and a half rate for each day worked, in addition to one pro rata day's pay for each of the six days as vacation allowance. For the remaining nine days that he was actually on vacation, he was paid at the straight time rate for each such day as a vacation allowance.
A demand is made that Carrier compensate the Claimant for six days pay at the regular rate or in the alternative allow six additional days vacation with pay in addition to the compensation already allowed. This would amount either to 35z times the rate or in the alternative 21/2 times the rate plus six additional days vacation. A demand is also made for nine days actually spent on vacation at the time and a half rate in addition to the vacation pay already allowed.
The claim has been submitted to this Board based on an alleged violation of Supplement B Vacation Agreement, Section 5 thereunder, which reads as follows:
It is quite evident from a reading of the above cited section of the vacation agreement that Carrier did in fact violate it's provisions. It is also quite evident that insofar as the six days worked are concerned, Carrier paid the penalty in strict compliance with the agreement. There are no provisions for the additional compensation demanded or for the crediting of six days vacation. (See Awards 14, 15 Special Board of Adjustment No. 186-Telegraphers v. Denver and Rio Grande Western Railroad.) Insofar as the nine days of vacation actually taken are concerned, to grant the demand made would be tantamount to the imposition of a penalty for which no specific provisions are made. (Brotherhood of Railway Trainmen v. Denver and Rio Grande Western Railroad Company (10th Circ.) 338 F. 2d 407 (1964), Cert. den. 380 U.S. 972 (1965) and Awards 15624 and 15914. We will deny the claim.
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