STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on The New York, New Haven and Hartford Railroad Company, that:
EMPLOYES' STATEMENT OF FACTS: The Agreement between the parties dated September 1, 1949, as amended and supplemented, is available to your Board and by this reference is made a part hereof.
These claims were timely presented and progressed, including conference with the highest designated officer and have been declined. Employees, therefore, appeal to your Honorable Board for adjudication.
These claims were timely presented and progressed, including conference with the highest designated officer, and have been declined. Employees, therefore, appeal to your Honorable Board for adjudication.
The correspondence reflecting the handling on the property is included in TCU Exhibits 1 through 12, and are attached to this submission.
Representatives of the Carrier and this Union cooperated in assigning vacation periods for the year 1965. Carrier states that when it became apparent relief employees would not be available to relieve the Claimants as scheduled, Carrier assigned them another vacation period; then when it became apparent that relief employees would not be available to relieve them for the
Claims were initiated on behalf of the claimants for the difference between the straight time rate and punitive rate, predicated upon the allegation that the claimants were required to work their vacation periods.
The instant claims were progressed through the prescribed channels on the property up to and including the undersigned.
Attached in exhibit form is copy of pertinent correspondence covering the instant claims:
Copy of the Agreement between the parties, dated September 1, 1949, as amended, is on file with your Board and is, by reference, made a part of this submission.
OPINION OF BOARD: Claimants herein had their originally scheduled vacation periods for the year 1965 deferred by Carrier because of unavailability of qualified relief employes and pressing Carrier business; thus their vacation periods were not scheduled for specific assigned periods later in said year by Carrier. All of the Claimants were originally scheduled for their qualified number of days of vacation time with the exception of Claimants Joyce and Stepnoski, whose 4th week of vacation time was unscheduled by Carrier.
The determination of this dispute hinges on the question as to whether or not Claimants "worked their vacation periods".
Carrier contends that the vacations in question were timely deferred as required by Article 5 of the December 17, 1941 National Vacation Agreement, and therefore Claimants could not have performed services during their "assigned vacation periods".
The applicable provisions of the National Vacation Agreements are Articles 5 and 7(a) of the December 17, 1941 Agreement and Article I, Section 4, of the August 21, 1954 National Vacation Agreement.
Articles 5 and 7(a) of the December 17, 1941 National Vacation Agreement provide, as follows:
Article 1, Section 4, of the August 21, 1954 National Vacation Agreement provides:
Carrier argues that by virtue of Article 7(a) of the '41 Agreement, Claimants were allowed and paid the daily compensation of their respective assignments in lieu of vacations, and that no further additional payments are due Claimants herein; and, further, it contends that payments of time and one-half arises only in the case where an employe is required to work during his "assigned" vacation period.
The Organization contends that because of Article 1, Section 4, of the '54 Agreement, Claimants are entitled to time and one-half rate of pay for said vacation periods.
In support of its position, Carrier relies strongly on this Board's Award No. 16724. With the conclusion reached in said Award No. 16724, we do not agree. The Referee in said Award was apparently impressed with the fact that Carrier did not exhibit any evidence of arbitrary action, lack of good faith, and efforts to thwart the provisions of the Vacation Agreement. No such evidence or contentions are at issue in this dispute.
Article 5 of the December 17, 1941 National Vacation Agreement clearly provides that in the event Carrier cannot release an employe for a vacation during the calendar year because of service requirements, then such employe shall be paid in lieu of the vacation the allowances hereinafter provided. We look to see that allowances are hereinafter provided, and find that Article 1, Section 4, of the August 21, 1954 National Vacation Agreement provides that such an employe is entitled to the time and one-half punitive rate.
Nothing in said Article 1, Section 4, of the '54 Agreement or any other Agreement says that an employe must work his "assigned" vacation period, as Carrier is contending herein before he is entitled to the punitive rate of pay. If we were to reach such a conclusion, we would be varying, altering, adding to or changing the Agreement or Agreements, which this Board is not entitled to do.
Therefore, it is our conclusion that Carrier violated the Agreement and these claims should be sustained.