-4W sea Award No. 18316
Docket No. CL-18530









BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND

STATION EMPLOYES




STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6706) that:




EMPLOYES' STATEMENT OF FACTS: On and prior to October 1, 1964, Mr. W. 147. Crouch, seniority date September 1, 1952 (Class A) and June 3, 1949 (Class B) on the Kansas Division Station and Yards seniority district and roster, was assigned to a five day per week position of Bill Clerk in the Agent's Office, Topeka, Kansas, assigned hours 9 A. M. to 6 P. M., meal period 1 P. M. to 2 P. M., rest days Saturday and Sunday, rate $20.74.


On February 7, 1965, National Mediation Agreement Case No. A-7128, was negotiated, which Agreement provided among other things, in Article 1, Section 1, as follows:







OPINION OF BOARD: Claimant held a regularly assigned position from which lie ivu; displa^ed ant reverted to a furloughed status. In 1967 he worked 32 days for which he was compensated. He was also paid, under the provision of the February 7 Agreement, for approximately 229 days.


It is the position of the Employes that all of the days for which he received compensation during 1967 should be taken into account when determining his eligibility for vacation in 1968.


The Carrier argues that this Board has no jurisdiction for the reason that it is called upon to interpret the February 7 Agreement. We determine, however, as the Organization contends, that it is a question of whether or not the Vacation Agreement was violated and thus the question is properly before this Board.


In interpretation of the Vacation Agreement; Referee Morse was asked: "Question No. 2: Moaning and intent of the words `renders compensated

service.' "





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Had Claimant not been in a standby or call-service category, Carrier would not have been required to compensate him as a protected employe.






It is also contended by the Carrier that the claim should fail because no mutual planning was done on a vacation for Claimant and that the Organization failed in its contractual obligation.






This indicates there was a conversation and that it was not considered on the Carrier's part rather than the Organization.




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






    Claim sustained.


              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 4th day of December 1970.

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CARRIER MEMBERS' DISSENT TO AWARD 18316, DOCKET CL-18530

              (Referee John Criswell)


The primary reason relative to why this is an erroneous award is that this Board did not have jurisdiction to adjudicate the dispute involved in this case. The instant dispute arose from and as a result of the Mediation Agreement A-7128 of February 7, 1965 which specifically provides that any dispute arising from the application of the February 7, 1965 Agreement will be submitted to a Disputes Committee set up under that Agreement to handle such disputes. The claim should have been dismissed for lack of jurisdiction of this Board just as were those claims in Third Division Awards 14979, 15696, 16522, 16924, 16869, 17099 and 77579 as well as others.


Secondly the majority completely ignored Referee Morse's Interpretation of the National Vacation Agreement of December 77, 1941 where be specifically stated at least three times that the expression "renders compensated service" means actual working and the performance of compensable service for Carrier and did not mean compensation for no actual work or ,service could be considered relative to qualifying time for purposes of an employe being entitled to a vacation. In the instant case the claimant simply did not "render service" on a sufficient number of days to qualify for a vacation according to the general acceptance of Referee Morse's Interpretations.


Thirdly, the Referee cited Third Division Award No. 16844 (Dorsey) and followed it in the instant case. This too was patently erroneous for in 16844 the Carrier withheld the claimant in that case from rendering compensated service thus depriving him of the opportunity to accumulate sufficient qualifying days to entitle him to a vacation. This facet Nvas not present in the instant case therefore Award 16844 being clearly distinguishable should not have been followed.


Fourthly, the majority in sustaining this claim allowed the payment of interest when no rule in the controlling Agreement provides for such allowance. If the Petitioner wants employes to be paid interest its recourse is through collective bargaining. Again, the Agreement does not contain a provision for interest payment and this Board cannot concoct such a rule for the parties- (Awards 16552, 15533, 17616 and others) -for as Referee Whiting stated in Second Division Award 2675:


    "The claim seeks interest but there is no basis therefore in the rules and this Board is not a court of general jurisdiction, so such request must be denied."


Other pertinent awards which denied interest are 6962, 8088, 15709, 11172, 134 78, 12838, 14497, 17217 among many others.


Aside from the fact that no rule in the Agreement supports a claim for interest, and the Board can only validly apply the Agreements as written, the fact remains that claims before this Board are not judgements, but are requests for interpretations of the Agreement for which money is claimed. Until those interpretations are rendered in claimants' favor there is no money due and owing and hence no interest could possibly accrue. See Leday vs Milwaukee Road, U. S. Court of Appeals, Seventh Circuit, decided January 29, 1970.


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For the foregoing reasons we dissent.

                      W. B. Jones R. E. Black P. C. Carter G. L. Naylor G. C. White


Keenan Printing Co., Chicago, Ill. Printed in U. S. A.
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