(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:




$TATEiMTT OF CLAIM: Claim of the General Co=ittee of the Brotherhood
 of Railroad Signalmen on the former New York Central Railroad Company - Lines East:

On behalf of Leading Signal Maintainer E. Kempel, Section 9 Spuyten Duyvil, N. Y., for eight hours straight time nay for each day, April 8, 9, 10, 21 and 12, 1974, account Maintainer P. McCanish being on vacation and his position as first trick maintainer not covered, this causing Mr. Ke=pel to be responsible for and perform the work and duties of both hi-elf and the vacationing maintainer, this in violation of Section 6 of the Vacation Agreement and Section 10 thereof as it,oertains to Section 6.

OPINION OF BOARD: This is a claim for pay under the National
 Vacation Agreement by a leading maintainer because the carrier blanked a maintainer job while the incumbent was on vacation for fire days, resulting in additional work and burden for the claimant. i
 In the week starting April 8, 1974, on the first trick, the signal work crew consisted of a leading signal maintainer, a signal maintainer and a signal helper.

 In the absence of the maintainer and because the helaer was not qualified to perform signal maintenance work, the only employe left to do signal maintenance work was the leading signal maintainer, claimant in this dispute.
                    Docket Number SG-21413


i
 Claim
The claim is for eight hours straight time pay for the five days in issue. The basis for the claim is that the carrier violated Articles 6 and 10(b) of the National Vacation Agreement of December 17, 1941.

 Contract Provisions in Issue
                                                          Article 6 provides: i


        "6. The carriers will provide vacation relief workers but the vacation system shall not be used as a device to make unnecessary jobs for other workers. Where a vacation relief worker is not needed in a given instance and if failure to provide a vacation relief worker does not burden those employees remaining on the job, or burden the employee after his to provide such relief worker."


        Article 10(b) provides:


        "10(b). Where work of vacationing employees is distributed'among two or more employees, such employees will be paid their own respective rates. However, not more than the equivalent of twentyfive per cent of the work load of a given vacationing without the hiring of a relief worker unless a larger distribution of the work load is agreed to by the proper local union committee or official."


                                                          I


Positions of the Parties
The organization argues that: (1) there was additional burden on the leading signal maintainer because he had to assume the duties and responsibilities of the vacationing maintainer and any degree of additional burden caused by the carrier's failure to provide a vacation relief employe is a violation of Article 6; and (2) even if it were accepted that the carrier had a 25% leeway on burden, in accordance with the provisions of Article 10(b), the claimant, working alone, had at least a 33 1/3% increase in burden.
                    Award Number 22060 :age 3

                    Docket Number SG-21413


The carrier argues that: (1) no added burden was placed on the leading signal maintainer because he was required to perform only signal ^...d' i-itainer's work in 'he ti-° he was on the job; (2) "-.!.though c.L?i-nt nerformed a pox-z;ion of the' duties normally performed by the vacationing maintainer, he was not recurred to perform more than 25~, of the normal workload of that vacationing employee"; and (3) the organization failed to meet its burden of proof, "in that it has not - raished army positive evidence" on 'he resulting work burden on the clai-~nt.

 Referee Morse's Interpretations
These examales of denial of claims on charges of violation of Articles 6 and 10(b) of the National Vacation ~greeMent indicate
 the dile"ria which has existed since 1941 when the agreement was reached. !
 The dtle=a has been how to judge if 'he a=loyes are "making" work or
 if 'he a=foyer is taking advantage of a vacation absence by not filling
 'he job and e-roecting the other e=loyes to pick up the slack.

 It is not as though no one recognized the difficulty when tae agreement was reached. Referee ;4orse, who was on bozo the Emergency Board leading to the National Vacation Agreement mad who was called in as the neutral to officially interpret the agreement once reached by the parties, was very deliberate and careful to spell out the positions of the parties and to give his opinion - which, in many cases; was that ttis was a^ agreement which could work only with the good ffa=th cf t.. ^a_"'.1e5. ~S.rse, however, decided that the bv.:den would be measured by whether an employe was reasonably able to do the work, considering 'U'.ae increased responsibility he assumed by picking up the slack of the employe on vacation. On the question of meaning to be given the word "burden" in Article o, he decided it should be taken in its ordinarf sense which is to "overtax" or to "oppress". As
 11 this would be determined, howel,--r, I-Icrse concluded the aueszion
 Z;o tow t - is one of fact "which would have to be dete -;ned in the light of the oarticular circumstances of the cases".

 The facts supporting 'he claim zre that the absence of the maintainer le_'t only one qualified signal maintenance man to do the required work. IZ may be fairly accepted that if one classified employe on a job which requires seven days a week, around the clock, coverage is required to do work for a period of a week which is normally covered by two employes in that classification, the e=loye remaining on duty ::as an additional burden in perfor^.i:g his work. The ouoosite irj erence would be that there was not need for two classified en.^ployes to do the work in the firs;, plat=_ and no such inference is justified under the facts or the way in which tae carrier assigns e-.·^aloyes to do the required work. Thus, it =2y be accevted that the burden was increased on the claimant.
 Award .lumber 22C6a
 Docket c:u=.ber SG-21'- I3

 But the question re=airs, was that burden o=ressi-re or was it such to overtax his ability to do the ob. Neither the clant nor the crganization presents d4--ect evidence on this =e_a. Thus, there is insufficient basis to conclude that claimant was burdened to the extent required under the agreement to sustain ee claim.

 =he a-gumeats by both sides on Article 10(b) are irrelevant to this dispute.

        There is a surface relationshit between the recuirerent i=

' o,-.
 Article o concerning burden and the provision it Article 10(b)
 concerning distribution of the work to a maxima= of 25,0; however,
 Article =0(b) is a pay -provision and applies in a situation .here the
 Ca_Trier spreads the work among vw'O or more e^_^-JLOye3. L1 this C=u?u,e;
 the burden - whatever degree of burden it was - fell on the one
 r emai eloye and there is ac way to a=or tier the amount Of
 burden that the r-wining emrloye sustained since 'ae did P" the
 signal. maintenance work.

 Since Article 10(b) is not r=ated to this dispute, there is no 'oasis :o sustain the claim under this provision of the Naticnal Vacation Ag=e-..merit.

        R'1LINGS: The Third Division of the Adj,st=ent Board, uDOr L:ae whole record arid all the evidence, finds and holds:


'hat the uarties waived oral hearing;

 That the Carrier and the 7mmloyes involved in this disvste are respectively Carrier and E~=lcyes within the meaning o- t::=_ Railway LaborVAct, as aaoroved June 21, 1934;

        That this Division of the Adjust==at Bcard has jurisdiction


over the dispute involved herein; and

 That the Agreement was not violated.

 .4 'rl A 3 D
        Cla~- denied .. r~ ~ ~ i


                        IT

                        AT ONAL RAZITL2RCADD J- 3CARD

A=ST: 50A'U'~ By Crder of ?:;· - ~.
                                    _ra ~_lrisic.


        7=eCUt7.ve S2Cr°_tary


Dated at Chicago, Illinois, this 31st day of May 1978.