Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29265
THIRD DIVISION Docket No. CL-29343
92-3-90-3-283
The Third Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(CST Transportation, Inc.
(Louisville 6 Nashville Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10460) that:
I am herewith filing a claim for vacation pay as provided for in the
nonoperating (BRAC) National Vacation Agreements found in Addendum 4, page 78
starting in the amound 'sic) of $2,759.76. I have received payment in the
amount of $2,312·63 leaving the amount due me $447.13.
STATEMENT OF
CLAIM:
Extra Employees are to be paid in accordance with Addendum No. 4,
National Vacation Agreement, 'an employee ...will be paid on the basis of the
average daily straight rime compensation earned in the last pay period preceding the vacation during
86. Also found is 'paragraphs (a), (b), (c), (d), and (e), hereof shall be
construed to grant to ''weekly and monthly rated employees, whose rates contemplate more than five d
three, four or five work weeks.' Paragraph (f) page 81. I am therefore due
four 'weeks' pay which is figured at 6 days per week at $689.94 per week.
Transporting."
FINDINGS:
The Third Div_sion of the Adjustment Board upon the whole record
and all the evidence, :finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to sa=d dispute waived right of appearance at hearing thereon.
Form 1 Award No. 29265
Page 2 Docket No. CL-29343
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Claimant is regularly assigned to the Guaranteed Extra Board established at Bruceton, Tennessee.
weeks of vacation. During the pay period immediately preceding his vacation
(the weeks of July 4 and July 11, 1988) Claimant worked six consecutive days
on two monthly rated, six day positions at New Johnsonville, Tennessee, while
the incumbents were on :acation. The monthly rate for both positions was
$3,025.13.
To determine t.`~e average daily compensation of the monthly rated
positions, the Carrier Divided the monthly rate by the number of work days in
the particular months. Stated differently, for the two weeks of vacation
Claimant took at the end of July, the Carrier paid him five days per week at a
daily rate of $116.35, which represents the monthly rate of the positions he
worked in early July di:ided by 26 work days. For the two weeks of vacation
Claimant took in August, the Carrier divided the monthly rate by 27 work days
and paid Claimant five says pay per week at $112.04 per day. Thus, the
Carrier paid Claimant vacation compensation amounting to $2,283.90.
Claimant initiated a claim contending that his vacation compensation
should have been predicated on six days of compensation per week of vacation.
Section V - Vacation Allowance of the August 28, 1985 Memorandum of
Agreement establishing _he Guaranteed Extra Board at Bruceton provides:
"An extra board employee going on vacation will be
compensated in accordance with Addendum No. 4,
National Vacation Agreement, reading, in part, as
follows:
'An emplove
... will
be paid on the basis of
the average daily straight time compensation
earned i: the last pay period preceding the
vacation during which he performed service."'
The language of Section V was lifted virtually verbatim from Section 7(e) of
the December 17, 1941 Nonoperating National Vacation Agreement which states:
"An employee not covered by paragraphs (a), (b), (c),
or (d) of t-is section will be paid on the basis of
the average daily straight time compensation earned
in the last pay period preceding the vacation during
which he performed service."
The August 28, 1985 Guaranteed Extra Board Agreement clearly and
unambiguously adopted Section 7(e) of the National Vacation Agreement as the
method of computing the vacation compensation for extra board employees. The
vacation compensation is based on "...the average daily straight time compensation earned in the las
Form 1 Award No. 29265
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92-3-90-3-283
per week even though he occupied a six-day monthly rated position during the
pay period preceding his vacation. Nothing in Section V of the Guaranteed
Extra Board Agreement suggests that the vacation compensation would always be
limited to five days regardless of the type of position the extra employee
relieved during the pay period before the extra employee's vacation. Indeed,
this Board has previousi-7 ruled that Sections 1 and 7(e) of the National
Vacation Agreement must be read harmoniously. In Third Division Award 14351,
we wrote:
"We find that Section 7(e) prescribes that Claimant's
vacation emoluments - both as to number of vacation
days and vacation pay - were to be predicated on the
workweek and rates of pay of the position she worked
during the last pay period preceding her vacation.
From this it follows that Claimant, by application of
Section 1(d), qualified for a vacation of three work
weeks: of 6 days per week - a total of 18 days. We
will sustain. the Claim."
The Claimant in Award 1-351, like Claimant herein, was an extra employee
relieving a six day monthly rated position. Award 14351 explicitly rejected
the Carrier's position t-at Section 1(f) of the National Vacation Agreement
applies exclusively to employees regularly assigned to monthly rated positions.
Moreover, by quoting Section 7(e) of the National Vacation Agreement
in the Guaranteed Extra 3oard Agreement, the parties implicitly carried
forward the interpretat_Dns of the language under the National Vacation
Agreement.
The Carrier contends that on this property there is a past practice
of paying Guaranteed Extra Board employees only five days of compensation for
each week of vacation regardless of the type of position they occupied during
the pay period preceding their vacations. As the proponent of the past practice, the Carrier had the
does not contain any proof of the purported past practice.
In reaching our decision that Claimant's vacation compensation was
miscalculated, we disregarded the Organization's reference to prior settlements of similar claims on
prejudice to either party's position.
We remand this case to the property for the parties to properly compute the additional amount du
four week vacation in July and August 1988. The calculation shall be made
consistent with Third Division Awards 14351 and 15570.
Form : Award No. 29265
Page - Docket No. CL-29343
92-3-90-3-283
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J er - Executive Secretary
Dated 3t Chicago, Illinois, this 12th day of June 1992.