NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
TRANSPORTATION-COMMUNICATION EMPLOYEES
UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union (Formerly The Order of Railroad Telegraphers) on the Missouri Pacific Railroad (Gulf District), that:
EMPLOYES' STATEMENT OF FACTS: Claimant F. V. Eady is regularly assigned to the CTC telegrapher position in H Office, with assigned hours of 7:00 A.M. to 8:00 P.M. Monday through Friday, with rest days of Saturday and Sunday. Claimant Eady has a seniority date of July 4, 1929.
On January 20, 1964, a vacation schedule was agreed upon by Superintendent Morrow and District Chairman R. T. Phillips. According to the assigned schedule, Telegrapher Eady was assigned a vacation date of April 20 through May 8,1964.
Without consultation with the Organization and on the purported excuse that there were no available extra men, Superintendent Morrow unilaterally postponed . Mr. Eady's vacation. Then again without consultation with the Organization, Superintendent Morrow unilaterally reset Mr. Eady's vacation for June 1 through June 19, 1964, with a notice being given to Mr. Eady on May 29, 1964, three days prior to the new date of the June 1-19 vacation assignment. OPINION OF BOARD: Pursuant to a vacation schedule agreed upon by the Organization and Carrier, Claimant had a scheduled vacation from April 20th through May 8, 1964. On April 9, 1964, Claimant was notified that his scheduled vacation would have to be postponed because there were no available extra men to protect his assignment. Thereafter, Claimant requested that his vacation begin as soon as possible. Accordingly, Claimant was assigned and accepted a vacation from June 1 through June 19, 1964.
"(a) Vacations may be taken from January 1st to December 31st and due regard consistent with requirements of service shall be given to the desires and preferences of the employees in seniority order when fixing the dates for their vacation.
The local committee of each organization signatory hereto and the representatives of the carrier will cooperate in assigning vaca- tion dates. --
"(b) The Management may upon reasonable notice (of thirty (30) days or more, if possible, but in no event less than fifteen (15) days) require all or any number of employees in any plant, operation, or facility, who are entitled to vacations to take vacations at the same time.
"Each employee who is entitled to vacation shall take same at the time assigned, and, while it is intended that the vacation date designated will be adhered to so far as practicable, the management shall have the right to defer same provided the employee so affected is given as much advance notice as possible; not less than ten (10) days' notice shall be given except when emergency conditions prevent. If it becomes necessary to advance the designated date, at least thirty (30) days' notice will be given affected employee.
If a carrier finds that it cannot release an employee for a vacation during the calendar year because of the requirements of the service, then such employee shall be paid in lieu of the vacation the allowance hereinafter provided."
"Article 5 must be read in connection with Article 4. As this referee pointed out in his discussion of Article 4, the parties have agreed upon a plan of cooperating in the assignment of vacation dates through the action of local employee committees and representatives of the carriers. However, it must be obvious to all concerned that even under such a cooperative plan, someone must take
final action on individual problems. The parties undoubtedly recognized that when they provided in Article 5 that the Management should have the right to defer the vacation of an employee when that becomes necessary in the interests of the service. However, it does not follow that the language of Article 5 permits the Management to exercise arbitrary and capricious judgment in deferring the vacation of an employee. If a Management should follow such a course then it is the opinion of the referee that the employees would have the right to make the matter a subject of grievance."
Thus, the issue before us is whether Carrier exercised its right to postpone Claimant's vacation arbitrarily and capriciously. Or, in other words, did Carrier act in bad faith in postponing Claimant's vacation?
For the exercise of Carrier's right to postpone Claimant's vacation to have been arbitrary, capricious, and in bad faith it would have to be shown that Carrier had no valid reason for such conduct other than a desire to impose its will on the Claimant. Such a showing has not been made in this case.
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