(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:



STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) Each of the employes named below shall be paid in full for all vacation time due them in the calendar year 1982 which each of them earned in the calendar year 1981.

































                        Docket Number MW-25969


            Carl C. Guck Richard D. Tithof

            Alfred E. Hajdu, Jr. Ellsworth B. Trowbridge

            Alfred E. Hajdu, Sr. Barry K. Tufford

            Anthony E. Hajdu, Jr. Garry D. Vore

            Carol A. Hatch Jeffrey L. Vore

            Louis G. Holbrook Virgil L. Vote

            Dennis P. Hyatt Laverne C. Wallace

            Larry R. Johnson Karl R. Walter

            Edward M. Johnston Clarence I. Watters, Jr.

            David L. Kastel John E. Webber, Jr.

            James C. Keehl Jerry L. Whitaker

            Kevin S. Kerns Jon N. Williams

            Dave M. Krajcovic Donald K. Willis

            James W. Lee Jerald W. Winkelman

            Thomas C. Loomis Donald L. Zwolensky

            Eugene L. Lowry Randy F. Spalney


(2) The claim* as presented by the General Chairman on February 28, 1983 to Acting Chief Engineer J. M. Chlipala shall be allowed as presented because said claim was not disallowed by Acting Chief Engineer J. M. Chlipala in accordance with Rule 24(A).

            *The letter of claim will be reproduced within our initial submission."


OPINION OF BOARD: The record indicates that Claimants herein performed com
 pensated service in the 1981 calendar year and therefore
 earned vacation to be granted during the 1982 calendar year, or payment in
 lieu thereof. Rule 44 of the schedule Agreement provides:

          "Employees shall be granted vacations, or payment in lieu thereof, in accordance with the provisions of the National Vacation Agreement of December 17, 1941, interpretations and amendments thereto ...."


The National Vacation Agreement, in Article 5, provides that if a Carrier cannot release an employee for vacation during the calendar year, the employee shall be paid in lieu of that release. Further, the Interpretations of June 10, 1942, specify that such payments shall be made not later than during the month of January following the vacation year. In this dispute the employees involved were not paid their vacation compensation by January 31, 1983, triggering the dispute. On January 20, 1983, Carrier sought protection under the United States Bankruptcy Code.

 The Organization insists that the Claim has prima facie validity and the schedule Agreement is controlling, notwithstanding the bankruptcy proceeding. Carrier maintains for settlement.

 Initially, the Board takes note of several procedural arguments advanced by the parties. The Board finds that resolution of those arguments is not necessary for the ultimate determination in this dispute.
                        Award Number 26402 Page 3

                        Docket Number MW-25969


The record in this dispute is clear in that Carrier has violated the Agreement in not making the required vacation payments to Claimants. The Bankruptcy proceeding is not within the jurisdiction of this Board. The Claim must be sustained.

        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, 1934;

 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.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest
        Nancy ever - Executive Secretary


Dated at Chicago, Illinois, this 13th day of July 1987.