NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION
EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6573) that:
EMPLOYES' STATEMENT OF FACTS: This dispute had its inception on November 22, 1967. Due to this fact, in order to place the facts in chronological order it is necessary to review the happenings up to the actual date the violation began on November 27, 1967.
Under date of November 3, 1967, one Mr. James H. Kennedy, GatemanPassenger Department, was afforded an investigation on charges of insubordination and dismissed from the Carrier's service effective retroactively to October 23, 1967 (See Employees' Exhibit No. 1). This decision was appealed to the Superintendent, Mr. w. R. Apple, on a leniency basis and the hearing was held on same November 22, 1967. After discussing the case at some length th·. Superintendent announced his intent to restore Kennedy to service on a leniency basis effective on or about December 9, 1967, and that during the interim period of November 27, 1967 to December 8, 1967, he would use Kennedy to relieve the Messenger position in the Communication (telegraph) Department while the incumbent Mr. Joe Johnson was on vacation. The position of the vacationing employee (Mr. Joe Johnson) was a Monday through Friday assignment with Saturday and Sunday rest days.
Accordingly, on November 27, 1967, leniency was extended to J. H. Kennedy. He was called back to service, and he was first temporarily assigned to cover the messenger position in the Communication Department while the incumbent, J. B. Johnson, was on vacation from November 27th to December 8, 1967.
On January 25, 1968, claim was initiated by Vice General Chairman B. D. Lynch on behalf of the claimants referred to in the Employes' Statement of Claim.
OPINION OF BOARD: On November 7, 1967, Gateman Kennedy was notified of his dismissal from the service of the Carrier retroactive to October 23, 1967. He had been withheld from service on this latter date pending investigation for insubordination. A formal hearing was held on November 3, 1967. The Organization appealed the dismissal on a plea of leniency at a conference on November 22, 1967 resulting in his restoration to service after December 8, 1967 with seniority and vacation rights unimpaired, but without pay for time lost.
On November 27, 1967 and continuing to and including December 8, 1967, Carrier employed Kennedy as a vacation relief employe to relieve an employe for vacation.
Because of Carrier's employment of Kennedy for vacation relief purposes, the Organization filed a claim on behalf of Claimant on the grounds that they were deprived of their seniority rights to the vacation work and further that they should have been used on their rest days at time and onehalf to replace the vacationing employe.
Both sides agree that Kennedy in this instance held no seniority and was not "called back to service" until December 9, 1967, the effective date of his reinstatement. He in effect was a discharged employe without any service connection until December 9, 1967.
The Petitioner relies principally upon Appendix "F" of the Agreement between the parties. They argue that when the position of the vacationing employee was required to be filled, it was incumbent on the Carrier to do so in accordance with the provisions of the National Vacation Agreement, as amended and Rules of the Agreement pertaining thereto, i. e. Appendix F. Further that when the necessity to fill the position became apparent, the Carrier was required under the terms of Appendix F to use the employes on the Master Roster entitled to the work as specified in paragraphs (A) and (E) of Appendix F. Paragraph (E) or Appendix F states:
Arguendo Petitioner states that there was no vacation relief position established, hence paragraph (A) of Appendix F would be the controlling rule. This paragraph provides that:
Since there were no available employes as specified in (A) (1) or in (A) (2), the Claimants falling into the category of employe specified in (A) (3) should have been called. These are the essential points of Petitioner's claim.
The Carrier contends that paragraph (E) of Appendix F is inapplicable to this case because a relief position was established. Furthermore they contend that even if Appendix F was applicable, paragraph H thereof, which provides.
recognizes that a vacation "vacancy" is different than other vacancies such as those due to illness, etc; that under the rule a vacation vacancy is not to be filled on a day to day basis such as involved in this claim, but is to be filled for the duration of the vacancy, if it is filled.
Carrier further contends that Appendix F is a general agreement concerned with various types of vacancies while the Vacation Agreement of December 7, 1941, is a special agreement concerned specifically with the subject of vacation and hence the latter will have to prevail on the general principle that special agreements have precedence over general agreements.
Carrier avers that Article 12 (b) of the Vacation Agreement specifically provides that absence from duty for vacation reasons will not constitute a "vacancy" in any position under any agreement and quotes several awards of the Board to sustain its position, that under the Vacation Agreement absences due to vacations are to be treated differently than absences due to other causes, and finally that the provisions of the Vacation Agreement pre-empt the field where a vacation absence is involved.
Carrier contends that the provisions of 12 (b) relating to the principle of seniority are not mandatory and that 12 (c) contemplates the hiring of a temporary employee such as was done in this case without resort to the seniority roster.
We agree in principle with the arguments propounded by the Carrier and will accordingly 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