(American Train Dispatchers Association PARTIES TO DISPUTE: (Burlington Northern Inc.

(a) The Burlington Northern, Inc. (hereinafter referred to as "the Carrier"), violated the currently effective Agreement between the parties, Article 16 thereof in particular, when it failed and refused to properly compensate Claimant C. C. Whitmore for vacation earned in the' year 1970 pursuant to the provisions of said Agreement.

 (b) Because of said violation, the Carrier shall now be required to compensate Claimant Whitmore paid under the terms of the Agreement for the twenty (20) day paid vacation he received in the year.
OPINION OF BOARD: Claimant worked for 135 days as an extra train dis
 patcher during 1970. He relinquished his seniority
 as a train dispatcher in December of that year and returned to his regu
 lar assignment as second trick Wire Chief. On June 11, 1971 he asked
 Carrier whether he would receive the higher dispatcher rate for the vaca
 tion taken during 1971. On June 17, 1971 Carrier advised him that he
 would not. Further correspondence followed and finally in a letter dated
 October 1, 1971 in reply to a letter Claimant had sent to him, Carrier's
 Vice President, Labor Relations advised Claimant that in Carrier's view he
 had been correctly paid at the Wire Chief's rate when he took vacation in
 June and August, 1971.

 This claim was filed on January 3, 1972. Carrier has defended on procedural grounds and on its merit. The Board has concluded that Carrier's procedural defense re states:







The Organization seeks to avoid the effect of Article 24(f) by pointing out that the vacation paid to claimant was paid under the provisions of another agreement and that Carrier could have paid him . vacation as provided by this organization's agreement at any time during the calendar year 1971. In
In Award No. 9850 the Board dismissed a claim for non-compliance with the time limit rule of the so it measured the date on which limitations began to run at the end of the calendar year. The facts in that case differ from the case now before the Board. In No. 9850 Cla not take it. Thus there was no "occurrence" until the last date on which the vacation could have been taken and for that reason the Board stated that limitations began to run on that date. Here there were two "occurrences"; one was in June and t
Claimant's failure to file his claim within the period specified in Article 24 (f) requires the Board to dismiss his claim.



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











ATTEST:
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        Executive Secretary


Dated at Chicago, Illinois, this 31st day of March 1975.
        labor Member's Dissent to Award 20666, Docket TD-20512


Award 20666 commits serious error when the dispute contained in Docket TD-20512 is dismissed on procedural grounds rather than reaching and deciding the case on its merits. The Carrier ::embers end the Referee constituted the majority in the adoption of Award 20666. The Carrier Members sought to and did convince the Referee on a procedural ground which these same Carrier Members have very recently argiiied vigorously against.

    As Award 20,66 states the Claimant did work 135 days as an extra train

dispatcher in 1970 and as a result qualified for a train dispatcher's vacation.
 While Award 2C566 does not detail it, Docket TD-20512 clearly shows that the
 Claimant also qualified for a telegrapher's vacation, because as the Carrier
 states, "When not required to work as a dispatcher, he performed service 121
 days as a telegrapher-wire chief in the Carrier's Spokane relay office." The
 Carrier also states "The claimant received 20 days' vacation in 1971 to which
 he was entitled to under the qualifying provisions set forth in Article 1,
 paragraph D of the 'ieleCraphers' Agreement. ." In its answer to the
 anployes' Esc ?ante Submission the Carrier states:

      "On page 10 of the Organization's submission, this Bosrd is asked to declare Carrier's reference to the Telegraphers' Agreement irrelevant. ;'hat agreement cannot be ignored in this case because the claimant, working under that agreement, took advantage of (1) his continuous service as telegrapher for vacation qualifying purposes, (2) his seniority date as a tele in fixing his vacation dates, (3) the telegraphers' rule that allows telegraphers to split their vacation periods and (4) the restrictive advance notice requirements that must be observed when changing vacation dates from those originally scheduled. All the mechanics of the telegrsphera vacation agreement were applied to the claimant's 1971 vacation, including the compensatory provisions.


From the above there coat be no question that the vacation which the Claimant took, as well as the compcncwtion allowed, was str·_ctly bascd on the Telegraphers' A5reement alone. Yet, on the basis of the vacation dates of his telegrapher's vacation, the Carrier i%embers convinced the F;feree that the tele,;raphor vrcation dates were the dates of occurrence on which the time limits should toll and, therefore, thc·. claim in Docket TD·.20512 should be
 Labor Member's Dissent to Award 20666, Docket TD-20512 (Cont'd)

 dismissed. From the Carrier Members' contention in this dispute it would appear they feel that the Agreements are so interwoven that a date of occurrence under one Agreement must also be a date of occurrence under the other Agreement.

 However, Carrier Members' contentions seem to wander at will. Award 20666 was adopted on F:arch 31, 1975. A Dissent was entered by the Carrier Members to Award 20535 on January 22, 1975 in which it was stated:

        "Fhrthercore, it is well settled by this Board that service as a Train Dispatcher is not subject to arty rule of the Telegraphers' Agreement. See, for example, Award Nos. 3674, 5629 and 12725."


This is not an acceptance of the stated position nor an endorsement to the Ca-rier Members' Dissent to Award 20585 but to show that on January 22, 1975 the Carrier Members took an opposite position.

 ,"he Awards mentioned in the Carrier Members' Dissent contain some interesting comments regardiz
      Award 3674 -


      "The Board concludes that there was no violation of the Rest Day Agreement as alleged. When Wright was working as a dispatcher he eras riorking under the Dispatchers' Agreement, not the Telegraphers' as supplemented by the Rest Day Agreement. It was just as if he had used his day off to work in a grocery store. The organization surely would not contend that the grocer owed him time and one-half whatever his compensation might be because he worked the other days of the week as a telegrapher, covered by the Rest Day Agreement. In fact, we believe this case arose out o= the close kinship between the dispatchers' and telegraphers' work. However close that kinship may be, we cannot let it influence our thinking in this case."


      Award 5629 -


      "It is tr·Ue that the Carrier is the sole employer, but t::e e7n0loyment rights of the emplcycs are by agreement se[-,e,=sted and distributed into crafts. This being so, in situations where an employe acquires status under two agreements, the contractual distribution into


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        Labor ;Member's Dissent to Award 20666, Docket 1D-20512 (Cont'd)


              "crafts is violated if his status under one agreement is given any effect upon his status under other, whether to his advantage or to his disadvantage (see Award 3674)."


              Award 1?725 -


              'This Board has held, in kra:d 3674 for example, that when a regular assigned tclegraphor:


                  ' . . was working as a dispatcher he r·as working under the Dispatchers' Agreement, not. the Telegrap her:,' as supplerlented by the Rest Day I,;reeraent. It was .just as ii tie had used his day off to work in a wrocery store . . . .'


              Under such holding, service as a train dispatcher is not subject to any rule of the Telegraphers' A,~rcement, includin'; zule 4. Tr necessarily follows that sei-vice as a train dic2ctcher c:oes rot nu11i:`j application of -:. y rule of the Tele·,raphcrs' A~:rcement, including rule 6. Rule 6 ~urran`.eas a regular assi,ned tele;-rather eight hours' ::ay i.-ithin each ts:enty-four hour ,period. The stated exceptions do not include periods of service as a train dispatcher; therefore, the rule applies in such cases. And certainly it cerctemplates the rende-in- of service if such car. lawtV11y and reasonably be required.


              "There was no reason, contractual or othernas°_, why the telegrapher could not lawfully be used on the days in question so as ;,o earn the payment reauired by Rule 6.


              "It follows that the Carrier did net violate the Agreement, acid the claim, therefore, mast be denied."


        From the Carrier .'.'.embers' mention of A:mrds 3674, 5629 ~:nd 12725, and the rulings contained in those Arora-rds.it must be considered that the Carrier Members are, or at least were, ?.n a;r cement with the princi.rl c that each craft's Agr<^c:.^.ent stn= 3s alone as an independent ccntra.~:t. IIo·rever, in the instant case the C~:rrier i,`er;bers turncd full ci=clc and rc.-virced the Referee that the vacation L.n,~er the Tcle=p'arher.^,' :.,;ree.ient c2»ned the time limit to toll for :a ·aair: ;_r vacation compensaticn unaer the train Dispatchers' Agreement.


i
 Labor Member's Dissent to Award 20666, Docyet TD-20512 (Cont'd)

 This bifurcation of positions regarding employes working under more than one contract which tae Carrier ::embers have engaged in (which the American Indian described as speaking with forked tongue) would be amusing if it were not for the serious effect it had on the instant Claimant. It would appear that this shifting of position and/or contentions could cause this ReferEC as well as other Referees to have reason to doubt the Carrier Members' credibility.

 Award 18930 sustains a claim in an identical dispute. Award 20340 is r1 diCDUte w*L.ere vacation compensation for an extra train dispatcher was involved (t:·ru;i~ the case is not exactly identical to the instant dispute) and Award 203'+C :~tate~::

      "-x-'~ The key to the entire matter is in the clear lrn_,:aL;.~ of th,: rules and t:a fact that the vacation w,^_..s ea:ncd i-zccr tae Agrcerent; it cannot be taken away 'ro-: t::e ~mpleye. The Award in 1~93C quoted above affin:a ti:is ^easonin.- in a situation wherein the employe resigned and then went to werlc in a different craft."


              f, this clear ruling in ?. ;.-ar d ?.0340 C

I;otwiL;.:;:ana~:. , ,~ gird 20L66 by dismissisn; the claim.h:.:; t:en ra::^.y t;Ie train diznatcher vacation which the Claimant had earned. Arrrra 2J;;u6 dismise:ed the cla.an: in Docket TD-2512 on a procedural ground which the majority knew was wronE, or at least directly counter to the position recently expounded, and I must dissent.

                                    J. P. Erickson

                                    Labor Member


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