NATIONAL RAILROAD B.DJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20215
Irwin M. Lieberman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused
to allow Extra Gang Laborer Loyd Berry ten days of paid vacation in 1971,
(System File .D-1721/Grievance File No. 3).
(2) Loyd Berry be allowed five days' pay because of the aforesaid
violation.
OPINION OF BOARD: Claimant worked as an extra gang laborer on System Extra
Gangs in 1969, 1970 and 1971. He prorked from March 17
until October 6, 1969 when he was laid off; he was rehired April 4, 1970 and
worked until December 1970 when he was terminated; he wag rehired on May 10,
1971 and worked until December 18, 1971. Carrier granttd Claimant five days
of vacation pay in 1972 and Petitioner alleges he should have been given ten
days of vacation.
Petitioner relies on Section 1(b)
of
Article II of the May 17, 1968
National Agreement, which provides:
"(b) Effective with the calendar year 1968, an amyual
vacation of ten (10) consecutive work days with pay will
be granted to each employee covered by this Agreement who
renders compensated service on not less than one hundred
ten (110) days during the preceding calendar.year and has
two (2) or more years of continuous service and who, during
such period of continuous service renders compensated service on not less than one hundred ten (110)
the years 1950-1959 inclusive, 151 days
in
1949 and 160 days
in each of such years prior to 1949) in each of two (2) of
such years, not necessarily consecutive.
In all other respects amended Article I of the Vacation
Agreement of December 17, 1941, as contained in Section
1 of Article II of the Agreement of January 13, 1967, is
continued in effect."
Carrier, however, bases its position on paragraphs (a) and (i) of
Article 1, Section 1 of the Vacation Agreement, which read:
Award Number 21221 page 2
Docket Number MW-2021.5
"(a) Effective with the calendar year 1965, an annual
vacation of five (5) consecutive work days with pay will
be granted to each employee covered by this Agreement who
renders compensated service on not less than one hundred
twenty (120) days during the preceding calendar year."
(i) An employee who is laid off and has no seniority date
and no'rights to accumulate seniority, who renders compensated service on not less than one hundred
in a calendar year and who returns to service in the following year for the same carrier will be gra
in the year of his return. In the event such an ,employee
does not return to service in the following year for the
same carrier he will be compensated in lieu of the vacation he
has qualified for provided he files written request therefor
to his employing officer, a copy of aUch request to be furnished to his local or general chairman."
The resolution of this dispute rests on whether or not claimant had
two or more years of continuous service as required by Section 1(b) above.
The record is quite clear that Claimant had no seniority rights and no right
to'be-recailed; the fact that he was indeed called back to service in 1970,
1971 and 1972 does not establish the fact of a right or seniority. Rule 2(a)
of the schedule agreement provides:
"(a) Except as otherwise provided for in these rules,
seniority
begins at the time as employs's pay starts as of last entry
in
to service. This does not apply to extra gang laborers who will
not
establish seniority rights until after they have been
in
continuous service for a period of
nine (9
) months."
Claimant never worked for Carrier for a
continuous period
of nine months at
any time, which was required-to establish seniority: he was a temporary seasonal
employe only.
It is quite apparent that this dispute could be resolved one way
based on equity'and quite differently based on the rules. This Board's
authority, however, is restricted to only construe the rules as agreed to
and drafted by the parties. Hence, Claimant is entitled to vacation only in
accordance with Section 1 (a) of the Vacation Agreement, as amended.
Award Number 21221 Page 3
Docket Number MW-20215
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and 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
That the Agreemant was not violated.
A W A R D
Claim denied.
' NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 31st day of August 1976.