(Brotherhood of Railway, Airline and
 ( Steamship Clerks, Freight Handlers,
 ( Express and Station Employee
 PARTIES TO DISPUTE:
 (Chicago, Milwaukee, St. Paul & Pacific
 ( Railroad Company

1) Carrier violated the Clerks' Rules Agreement at Milwaukee, Wisconsin on October 20, 1975 when it failed to honor an employe's written request and seniority rights to work a vacation vacancy on Position No. 09680, Airline Clerk,

 2) Carrier shall now be required to compensate employs C. J. Conrad an additional eight (8) hours at the straight time rate of pay of Position No. 09680 for the following days:

3) Carrier shall now be required to compensate employs C. J, Conrad for sixteen (16) hours at the time and one-half rate of Position No. 09640 on Sundays, October 26 and November 2, 1975.

 OPINION OF BOARD: This is a claim based on an alleged violation
 of the agreement between the parties which
 occurred when the carrier refused to honor claimant's request to
 work the vacation vacancy of employs Kolokithas. The carrier
 denied the request of claimant because there was no unassigned
 furloughed employs qualified to work claimant's position. Had
 carrier honored claimant's request, it would have had to pay
 penalty time to fill his position.

 The claimant bases his claim on the clear language of Rule 9 F and G and notes 1 and 2 thereto.


"RULE 9 -- BULLETINED POSITIONS

 (f) Bulletined positions filled temporarily pending an assignment, shall be filled by the senior qualified employs requesting the position.

 (g) New positions or vacancies of thirty (30) days or leas duration shall be considered as temporary and may be filled by an employs without bulletining; if filled, the senior qualified employs requesting same will be assigned thereto.
















The carrier maintain:; that 12A and 12B of the National Vacation Agreement of December 17, 1941 govern in the instant case and sanction its actions with respect to the claimant in the instant case. Specifically, the fact the carrier would have had to pay penalty time is alleged to run counter to the language " , . . a carrier shall not be required to assume greater expense because of granting a vacation . . . "

        "12. (a) Except as otherwise provided in this agreement a carrier shall not be required to assume greater expense because of granting a vacation than would be incurred if an employee were not granted a vacation and was paid in lieu therefor under the provision hereof. However, if a relief worker necessarily is put to substantial extra expense over and above that which the regular employee on vacation would incur if he had remained on the job, the relief worker shall be compensated in accordance with existing regular reli rules.


        (b) As employees exercising their vacation privileges will be compensated under this agreement during their absence on vacation, retaining their other rights as if they had remained at work, each absences from duty will not constitute 'vacancies' in their positions under any agreement. When the position of a vacationing employee is to be filled and regular relief employee is not utilized, effort will be made to observe the principle of seniority."


The organization would have us read the above-quoted provisions of the two agreements as though they were in conflict and that the chronology of the agreements gives superiority to the provisions of the Collective Bargaini to contract interpretation that it is presumed that the parties intended their various agreements to be in harmony rather than in conflict. It is presumed that the parties were aware of their various agreements and that subsequent agreements which do not repeal earlier agreements are made in full consideration of those earlier agreements and should be so interpreted.
                  Award Number 2353 Page 4

                  Docket .Number GL-22(93


Accordingly, in the instant matter, we nuet,read the ,rules of the Collective Bargaining Agreement together;wi-th the provisions of the 1941 Vacatiqn..Ag.;oement. When..we do so,_we £ind that the carrier is -warranted .in.not.gFaatfapg,:the.,rgquept.of the q],aimant when it would be required .to, asaume,a grgater. expense because of &wanting employe Kolokithas his vacation t_b4n it-would have assumed.had-the vacation not been. granted.and.,he.wes<~poid under the Agreement.

        We fail to find contractual aupport.fr>r;;he claim.


        FINDINGS: The Third Division of the Adjustment..Bc#.rd, upon~the whole record and all the evidence, finds and holds:


        Th:at the parties waived oral hearing;


That the Carrier and the Employes involved:-in this dispute are respectively Carrier and Employes within-the.weaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division.of the Adjustmept,.Bcqtrd, has jurisdiction over the dispute involve! herein; and

        That the Agreement was not violatga.


                    A W A R D

                                        ~~ ~ u iJ=~_

        Claim denied. \C;~,


                                      t

                                      v`v O~CIfI~B ' G^ \ ~'l

                                      ~i.`_~-~.1

                                      ip'~_y


                        NATIQNAI..gEyrj-zAPJ[rsrMI:NT BOARD

                        By Order, of :Third Division


ATTEST; _
 Executive Secretary

 Dated at Chicago, Illinois, this 29th day of Jamary 1982.

LABOR MEMBER'S DISSENT

TO

AWARD 23509, DOCKET CL-22073

(Referee Franden)


Award 23509 is in palpable error and does not correctly interpret the rules of the parties' working agreement and the articles of the National Vacation Agreement. The award, after citing various rules of the working agreement and articles of the vacation agreement, states:

      "The organization would have us read the above-quoted provisions of the two agreements as though they were in conflict and that the chronology of the agreements gives superiority to the provisions of the Collective Bargaining Agreement. It is elementary to contract inter-. pretation that it is presumed that the parties intended their various agreements to be in harmony rather than in conflict. It is presumed that the parties were aware of their various

- agreements and that subsequent agreements which
 do not repeal earlier agreements are made in full
 consideration of those earlier agreements and should
 be so interpreted."
 The parties were aware that their various agreements may
 not be in complete harmony when the National Vacation Agreement
 was first adopted forty years ago. This fact is noted in the
 1942 Morse Interpretations to the agreement. Several times
 Referee Morse had the opportunity to consider the relationship
 between the vacation agreement and the rules agreement. In each
 instance he concluded that the vacation agreement cannot be
 administered in a fashion that places it in conflict with the
 rules agreement. For instance, at page 71 of the interpretation,
 Referee Morse wrote:
      "Thus, the vacation agreement itself as adopted on December 17, 1941, shows that the parties recognized that existing rules agreements on the various railroad properties are applicable to the vacation agreement but that they may be changed in negotiations between duly authorized representatives of the parties.


      "At the hearing on August 1, 1942, as shown

      by the record, a lengthy discussion took place in

      regard to the way that various working rules in

      existing rules agreements might affect the admini

      stration of the vacation plan if the employees

      should insist upon a strict enforcement of them.

      The record shows that all arties concerned in

      the earn reco Ear_ t at existin rules agree

      ments must be to en into account in interpreting

      and applying the vacation a reement, although

      there was a marked di erence o opinion between

      the parties as to just how some of the rules should

      be applied to the vacation agreement.


      "At several points in the transcript, chiefly on pages 524 and 536, the referee reminded the parties that it was understood by them at the time of their December,, 1941, negotiations on vacations 'that the working rules would remain in force and that it was not contemplated that they would remain in force either to make work unnecessarily or in order to raise technicalities,' which would work injustice and defeat the purpose of the vacation agreement. It is the duty of the referee to interpret and apply the vacation agreement in accordance with the meaning of its language, and if that results in a conflict with some working rule about which the referee was uninformed, then it is up to the parties to adjust the matter through the machinery for negotiations as provided for in Sections 13 and 14 of the agreement. However, the referee has no power to force the parties to make such adjustments in their rules, no matter how fair and reasonable such adjustments would be." (underscoring added)


And at page 86 he again stated:

      "Irrespective of the problems and difficulties which apparently have arisen in connection with applying Article 10(b), this referee would not be justified in amending Section (b) of Article 10


                                      - 2 - Labor Member's Dissent to Award 23509

w

        "by way of interpretation in order to eliminate

        some of those problems. Sympathetic as he is

        with the view that an existing working rule which

        produces unust oE

        a ied to t e vacation a reement s ou e

        waive or set aside

                        ipso ar as administerin the

                                          .

        vacation plan is concerned, the act remains that

        it does not all within the re eree s 'prerogatives

        an 'urisdiction un er t e vacation agreement to

        change the working rues.


            "The parties have provided in Article 13 for

    the procedure which is to be adopted in making any

    changes in the Dorking rules. Hence, unless the

    referee can find that the vacation agreement

    itself constitutes a modification of some given

    working rule, the pa ties must be deemed to be

    bound b existing worcin rules anti t e ne otiate

    c an eus in them b use o the collective-bar ainin

    proce ures set out in Article underscoring added)

    Thus Award 23509 is in manifest error when it concludes that

    it is permissable to violate the rules agreement when applying

    the vacation agreement. The award is also in error when the

    logic of its "greater expense" comment is considered. The

    award stated: '

    "... it (the Carrier) would be required to assume a greater expense because of granting employe Kolokithas his vacation than it would have assumed had the vacation not been granted and he was paid under the Agreement.", Had Kolokithas not been granted his vacation and paid under the agreement, he would have been paid at the time and one-half rate. Thus, even if the argument were correct on the "greater expense" consideration with respect to the vacation agreement trumping the rules agreement, it would be incorrect with regard to any greater expense because there would be none. Had the Carrier properly filled the vacation vacancy the total cost would have been equal to that which they would have incurred had Kolokithas not taken a vacation and instead worked his own position.


                                        - 3 - Labor ?Member's Dissent to Award 23509

On the same date Referee Franden's Award 23509 was adopted by the Board, a similar Award by Referee Roukis was adopted - Award 23510. This award correctly held:

          "In reviewing this case, there are a number

of interpretative considerations that we must
 carefully examine before proceeding to a compara
 tive analysis of the key divisional Awards sub
 mitted vis this claim. When the applicable 1942
 Morse interpretations to the LZational Agreement
 are evaluated, toe find that Article 12 (b) requires
 Carriers not to bulletin vacation positions for
 the purpose of filling same from the employes.
 submitting applications and that an employe holding
 a regular position who is utilized to fill the
 position of the vacationing employe is governed
 by the provisions of !s rules agreements
 or recognize practices t ereun er.`~ (underscoring in original)
 Award 23510, after exhaustively examining the working agree
 ment, the vacation agreement and our prior awards, cited, with
 favor our early Award 4626 where we held in part:

 "It was the clear intention of the parties to the Vacation Agreement that the existing rules as to working conditions were to continue unless changed by negotiations." It is clear that Award 23510 is a correct application of the agreements, while Award 23509 is not. Award 23509 is in palpable error and requires dissent.

      CCE

            .


                              letcher abor Member

    !~ :! - ,

,. _

 Ch,~ ~~r~'
                          Date- .-


    0 >.

        ,._=


                        - 4 - Labor Member's Dissent

                                      to Award 23509