(American Train Dispatchers Association PARTIES TO DISPUTE:


STATEMENT OF CLA11I: Claim of the American Train Dispatchers Association that:

 (a) The Reading Company (hereinafter referred to as "the Carrier"), violated the effective Agreement between the parties, dated February 2, 1965, Article III thereof in particular, when it failed and refused to compensate Extra Train Dispatcher R. Short at train dispatcher rate of pay for vacation taken September 18 through September 29, 1972;

 (b) Because of said violation, the Carrier shall now be required to compensate Claimant R. Short the difference between the train dispatcher rate provided in Article III, Section 2(a) (1) (ii) of the Agreement of February 2, 1965, and the Operator position rate previously allowed for said vacation period.

 OPINION OF BOARD: In 1971 and 1972 Claimant held a regular position as tele-
 graph operator. This work came under the jurisdiction and agreement of the Brotherhood of Railway and Airline Clerks. During this same period Claimant also worked for Carrier as an extra train dispatcher. In 1971 Claimant worked in excess of 120 days as an extra train dispatcher and also worked in excess of 120 days as an Operator. In September 1972 Claimant took a vacation which was scheduled under the BRAC Agreement and was compensated for this vacation at the operator's rate. During the period (two weeks) immediately preceding his va for the vacation earned under the Dispatcher's Agreement at the train dispatcher's rate of pay.

 Under the Scope Rule of the Organization's Agreement with Carrier, Rule 1(a) the term train dispatcher includes " ....chief, assistant chief, trick relief, and extra dispatchers ....". The pertinent provisions of the February 2, 1965 Agreement are as follows:





              "Section 2(a)


                (1)- When vacations are afforded


                    (i) - A dispatcher having a regular assignment will be paid while on vacation the compensation of such assignment.


                    (ii) - A dispatcher not having a regular assignment will be paid while on vacation on basis of t average straight-time compensation earned as a dispatcher in the last payroll period preceding the vacation during which he performed service.


                (2) - When vacations are not afforded


                If a vacation is not afforded, payment in lieu thereof will be made not later than the first payroll period in January of the following year, computed on the following basis:


                    (i) - A dispatcher having a regular assignment will be paid in lieu of vacation the compensation of such assignment.


                    (ii) - A dispatcher not having a regular assignment will be paid in lieu of vacation on b average straight-time compensation earned as a dispatcher in the last payroll period during which he performed service preceding the close of the vacation year.


                        (Notes to Section 2(a):


                        (a) Local officers of the carrier and employees and their representatives will cooperate in arranging to meet annual vacation requirements in each office, giving due regard to business conditions, availability of a relief employee, and to the desires and preferences of train dispatchers in seniority order, but an individual train dispatcher may not waive his right to earned vacation and accept compensation in lieu thereof. Nor may a carrier elect to compensate any train dispatcher in lieu of granting earned annual vacation except when unavoidable emergency prevents furnishing relief.

                        (b) The words 'a dispatcher not having a regular assignment' as used in this Section mean and refer to an employee who holds seniority as a dispatcher and is subject to call as such at the time his vacation is taken or at the time he is paid in lieu thereof."


a
                  Award her 20340 Page 3

                  Docket Number TD-20356


            "Section 2(b)


            Vacations, or allowances therefore, under two or :more schedules held by different organizations on the same carrier shall not be combined to create a vaca than the maximum number of days provided for in either of such schedules.


            Section 2(c)


            Effective with the date of this agreement the vacation provided for in this agreement shall be considered to have been earned when the dispatcher has qualified under Section 1 hereof. If a dispatcher's employment status is terminated for any reason whatsoever, including but not limited to retirement, resignation, discharge, non-complian agreement, or failure to return after furlough he shall at the time of such termination be granted full vacation pay earned up to the time he leaves the service including pay for vacation earned in the preceding year or years and not yet granted, and the vacation for the succeeding year if the dispatcher has qualified therefor un dispatcher thus entitled to vacation or vacation pay shall die the vacation pay earned and not received shall be paid to such beneficiary as may have been designated, or in the absence of such designation, the surviving spouse or children or his estate, in that order of preference."


      Carrier states that an employe on vacation should be compensated at the rate of the assignment held prior to taking the vacation and Claimant did not hold a dispatcher's assignment prior to the vacation period. Carrier argues that Section 1(a) of and was in fact holding an assignment with another craft. Carrier concludes that since Claimant was not an employe represented by the Organization herein, he was properly compensated under the BRAC Agreement.


      The Organization argues that Claimant's position is covered by the Scope Rule and he clearly falls under the provisions of Section 1(a) of the Vacation Agreement (above). Further it is claimed that he should be paid as provided in Article III Section 2(a) (1) (ii) above.


      There is no dispute that Claimant had worked a sufficient number of days to qualify for a vacation under the Organization's Agreement. It is also undisputed that Claimant continued to work as an extra train dispatcher on call in 1972. The parties contemplated the situation, as herein, where an employe might qualify for a vacation under two or more schedules held by different organizations, and provided for a maximum number of days in such event in Section 2(b) of the Vacati


i
              Award Number 20340 page 4

              Docket Number M-20356


        "A dispatcher not having a regulpaid while on vacation on basis oof assign straight

        time compensation earned as a dispatcher in the last pay

        roll period preceding the vacation during which he per

        formed service."


In a related dispute, and an Agreement with language similar to that of the Vacation Agreement herein, in Award 18930, we said:

        "The claimant established seniority as train dispatcher April 29, 1946. He resigned July 23, 1964 and thereafter occupied a position covered by another organization. In 1964 he performed 116 days service as train dispatcher. This claim arises as a result of a dispute between Carrier and the Claimant as to the proper compensation to be paid Claimant for his 1965 vacation. We are persuaded that under Article 2 Claimant was entitled to be compensated on the basis of the average straight time compensation earned as a dispatcher for the vacation time involved herein."


We cannot agree with Carrier's position. There is no language in the Vacation Agreement which restricts vacation rights to those employes holding regular positions only; on the contrary, Section 2(a)(1)(ii) provides specifically for dispatchers not holding regular assignments. We see no rule support for the further argument that Claimant was not covered by the Scope Rule of the Schedule Agreement at the critical time. He was in fact still employed as an extra dispatcher in 1972; he might have relinquished his seniority or even have died accordance with Article III. It would appear, under the terms of the Agreement applicable in under two Agreements would always receive the higher rate of pay. The key to the entire matter is in the clear language of the rules and the fact that the vacation was earned under the Agreement; it cannot be taken away from the employe. The Award in 18930 quoted above affirms this reasoning in a situation wherein the employe resigned and then went to work in a different craft.

        For the reasons indicated above, the claim must be sustained.


        FINDIMS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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;
              Award Number 20340 Page 5

              Docket Number TD-20356


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement eras violated.


                    A 5l A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


yt ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of July, 1974.