NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYEES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6381) that:
EMPLOYE'S STATEMENT OF FACTS: Prior to December 15, 1966, in accordance with established procedure at Bloomington, Illinois, for requesting vacation dates, Mr. George Ziegler, Clerk in the Enginehouse filled out a "vacation assignment" form furnished by the Carrier, requesting that he be assigned the dates of February 28 through March 25, 1967, inclusive, for his 1967 vacation.
On February 2, 1967 he was advised by General Locomotive Foreman R. W. Paddock that his request for 1967 vacation dates starting February 28, 1967, had been declined. (Employee's Exhibit "A")
Under date of February 4, 1967, Division Chairman N. J. Petri wrote to General Master Mechanic H. R. Kinney with regard to Mr. Ziegler's request that he be assigned 1967 vacation dates beginning with February 28, 1967, calling Mr. Kinney's attention to Article 4(a) of the National Vacation Agreement and the fact that no senior clerk had requested the dates requested by Ziegler for his vacation, and requested that Mr. Ziegler be allowed the vacation dates he requested. (Employee's Exhibit "B")
General Master Mechanic Kinney replied to Division Chairman Petri's letter of February 4, 1967 on February 7, 1967, saying:
incumbents (including claimant) of these three positions, claimant's vacation period being scheduled for July 25 to August 19 inclusive, 1967. Claimant took his vacation during this period, and he was paid for the 20 days vacation in accordance with the prevailing vacation agreement.
Claimant was not assigned a vacation for the period February 28 through March 25, 1967. The 20 work days embraced in this period, and covered by the instant claim, were not vacation days; claimant was properly paid at the rate of his assignment for work performed on his assignment during that period, and no further payment is due.
The current working agreement (schedule agreement) between the Employees and this Carrier became effective November 1, 1950. Copy is on file with this Board, and same is made a part of this submission by reference.
OPINION OF BOARD: Claimant requested that he be assigned the dates of February 28 through March 25, 1967, for his vacation. His request was denied on the grounds that no vacation relief worker was available. After Claimant's preferred vacation dates had expired, a relief worked was employed, vacation dates were assigned and Claimant took his vacation.
The Organization contends that the Carrier violated Article 4(a) of the Vacation Agreement, which reads as follows:
"4(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 vacations. The local committee of each organization signatory hereto and the representatives of the Carrier will cooperate in assigning vacation dates."
This claim presents the question, therefore, of whether a Carrier is required to assign an employee the vacation of his choice at a time when it does not have a vacation relief employee available.
In dealing with the meaning and intent of Article 4(a) Referee Wayne L. Morse in his Award dated November 12, 1942, stated:
"(5) It is the opinion of the referee that the interpretation which the carriers seek to place upon the clause `consistent with requirements of service' is a too narrow one. It does not appear from the language of the first paragraph of Article 4(a) that is was the intention of the parties that the carriers could disregard the desires and preferences of the employes in fixing vacation dates or could deny a vacation altogether just because the granting of a vacation at a particular time might increase operating costs or create problems of efficient operation and maintenance. Obviously, the putting into effect of the vacation plan is bound to increase the problems of management, but, as the employees point out, the carriers cannot be allowed to defeat the purpose of the vacation plan or deny the benefits of it to the employes by a narrow interpretation of the clause 'consistent with requirements of service.'
"It is the opinion of the referee that it was not intended by the parties that the desires and preferences of the employees in seniority order should be ignored in fixing vacation dates unless the service of the carrier would thereby be interfered with to an unreasonable
Both parties agree in the instant case that Claimant's position could not be blanked. Therefore, Carrier either had to fill it with a relief worker or use other regularly assigned employees to fill it on an overtime basis. In applying the emphasized language of the above Interpretation to these facts we therefore have to conclude that to grant Claimant's vacation preference would have caused a serious impairment in Carrier operations which could not be avoided by the employment of a relief worker since none was available. The question then becomes, whether the use of regularly assigned employes on an overtime basis to fill the position of a vacationing employee when a regular relief employe can not be obtained is "a reasonable adjustment" as that phrase is used in the Interpretation for the Carrier to make in order to give Claimant the vacation dates he desires.
In this connection we do not believe that after the Carrier has made a good faith effort to find a relief worker to fill an employe's position during the dates the employe prefers to take his vacation and is unable to do so, it is reasonable or fair to the Carrier or the other employes to impose on the Carrier the duty of using such other regularly assigned employes on an overtime basis to fill Claimant's position just so that the latter can have the particular vacation dates he prefers.
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
LABOR MEMBER'S DISSENT TO AWARD 17558 (DOCKET CL
17308)
The decision rendered by the Referee in this Award is in error, based on conclusions on facts not contained in the record, and neither supported by Agreement provisions nor Awards of the Board.
Prior to December 16, 1966, Claimant made the request for his vacation for the period February 28 through March 25, 1967, based on his seniority, which request was considered and mutually agreed to between the parties to the Agreement, in accordance with Article 4 of the Vacation Agreement.
Carrier had in excess of two and one-half months thereafter to guarantee his selected vacation, either through the securing of a vacation relief or a rearrangement of forces to cover his position of Clerk in the Enginehouse.
The Referee reaches a conclusion that Carrier made a "good faith effort" to secure the relief, but nothing factual is found in the record to enable this writer to reach such a conclusion. Further, whether it was "reasonable or fair" to utilize the services of other regular employes on an overtime basis in accordance with their seniority and/or rearrange forces to cover his position is beyond this Board's power to determine, since this is not and never has been a Board of equity but is, rather, a Board empowered only to abide by the parties' agreement.
The Referee quoted and supplied emphasis to a part of the Interpretation made by Referee Wayne L. Morse pertaining to Article 4 (a) 5, but neglected to give cognizance to a part of that same quote wherein Referee Morse held:
The Referee's attention was directed to that part of the Interpretation, and to recent Awards 16551 (Dorsey) and 17148 (Zumas), and quoting from Referee Zack's Award 16748 in which he held in the Opinion of Board:
The Referee's statement, i.e., "just so that the latter can have the particular vacation dates he prefers" (referring to Claimant) is entirely correct. Just so an employe can have the particular vacation dates he prefers is precisely the reason the National Vacation Agreement was negotiated in a concerted effort in behalf of all employes-Claimant included. He had earned it and was contractually entitled to receive it at the time he desired it, consistent with his seniority dace, unless an emergency precluded. Carrier being able to permit his absence which, in this case, did not occur.
This Award condones Carrier's refusal to put forth any effort to comply with the Agreement.
"Prior to December 16, 1966, Claimant made the request for his vacation for the period February 28 through March 25, 1967, based on his seniority, which request was considered and mutually agreed to between the parties to the Agreement, in accordance with Article 4 of the Vacation Agreement."