PARTIES TO DISPUTE: (The Atchison, Topeka and Santa Fe Railway Company

 STATEMENT OF CLAIM: "Claim of the General Committee of the Brotherhood of
 Railroad Signalmen on The Atchison, Topeka and Santa Fe Railway Company:

 (a The Carrier violated the Agreement, particularly Appendix No. 1, Section 1-(h~, when it refused to grant Mr. L. C. Davidson 15 days vacation pay for the year 1980, to corer the qualifying year 1979.

 (b) Carrier should pay Mr. I4 C. Davidson 15 eight-hour days pay to cover his earned vacation time."

OPINION OF-BOARD: This claim is based on Sections 1(c) and 1(h) of Appendix











        ill. Combined, this totals 100 days, which, under normal circumstances, would have entitled him to a 15-day vacation in the year 1980. However, because of the fact that claimant sought and accepted employment with an outside concern on May 25, 1979 .., service performed for this Carrier on or subsequent to May 25, 1979, can not be included as qualifying time for vacation purposes."


With reference to Mr. Davidson accepting outside employment, Carrier refers to Article IX, Section 1(c) of the labor Agreement:

        "Article IX


        Section 1(c)


        Employes on leave of absence accepting other employment, without written permission from the ranking officer of the department in which employed, will be considered out of service. Employee shall not be granted leave of absence is excess of 90 calendar days in any twelve consecutive months to accept outside employment except by agreement between the Management and the General Chairman."


Carrier asserts that, while Claimant worked 80 days is 1979, only 78 of those days were rendered pursuant to Agreement rules sad creditable for vacation qualifying time. This assertion is based on claimant accepting a position with the U. S. Pollution Control as of May 25, 1979. Continuing with its position the Carrier concludes:

        "As of that date, and as provided for in the above quoted Article IX, Section 1-(c~ of the Agreement, which is a self-enforcing rule, Claimant immeidately forfeited his seniority, thereby severing his employment relationship with the Carrier and any right to future service under the Agreement."


The two days of service in dispute as to vacation entitlement are July 30 and 31, 1979. The Organization claims he returned to work on those two days to test whether he was physically able to withstand signalman work; the Carrier alleges Claimant's return to work was "to circumvent Agreement rules and obtain vacation pay". In support of its allegation, Carrier points to the manner Claimant used in obtaining an extension of his leave of absence. Thus, on July 30, 1979, the first day of his return to service, he submitted a letter from Dr. Ashby, recommending he be given an extension of his leave of absence, which was granted effective August 1, 1979. Finally, Carrier states that an investigation was held on April 11, 1980, to give Claimant opportunity to explain his responsibility in accepting employment with the USPCI is violation of Company rules. Despite proper notice to Claimant of the investigation as required by the Agreement rules, he made no attempt to attend the hearing ae,- in any other manner, defend his actions.
                      Award Number 24186 Page 3

                      Docket Number SG-2+233


Claimant was on continuous leave of absence from April 10, 1979, and his leave was continued effective August 1, 1979, following his two days of compensated service as a signal maintainer on July 30 and 31. These facts evidence his continued employment relationship with the Carrier during this controversial period. Moreover, Carrier set up an investigation under Agreement rules for April 11, 1980, nearly one year after the service performed by Claimant on the two days in question. These facts point to Claimant's continuing bona fide employment relationship at the time of compensated service in his craft on July 30 and 31, 1979 to fulfill the required 100 days of compensated service conditional for his vacation entitlement. While we may understand Carrier's quarrel with Claimant under Article IX, Section 1(c), we cannot agree that this nullifies his compensated service on those dates. In view of the circumstances reviewed herein, argument that Claimant's service on July 30 and 31, 1979 was not under Agreement rules is fallacious and unsound.

 The provisions of Section 1 (c) of the National Vacation Agreement contain no qualifications relating to alleged misleading intent is performing compensated service such as advanced by Carrier in this case. All that the Agreement requires is 100 days of compensated service under the Agreement during the preceding calendar year provided other service requirements in prior years are met. Facts reviewed in both the Organization and Carrier statements of fact show that these requirements were satisfied. In accord with the circumstances and facts reviewed herein our conclusion is that Claimant rendered the required 100 days of compensated service during 1979 under the Agreement and is therefore entitled to vacation for 1980 as claimed.

        FINDINGS: 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, 193+;

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

        That the Agreement was violated.


                          A W A R D


        Claim sustained.

                      Award Number 21E18( Page >+

                      Docket Number SG-21+233


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 BY
 Rosemarie Breach - Administrative Assistant

 Dated at Chicago, Illinois, this 28th day of February 1983.

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