The Third Division 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 employe 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 said dispute waived right of appearance at hearing thereon.
As offered by the Carrier in its submission, this dispute involves the following:
Some time after these events, the Carrier discovered its "error". When the Claimant returned to duty in or around June 1989, the Carrier deducted the four days of holiday pay to which it contended the Claimant improperly received.
The organization argues that the Claimant was entitled to designate the latter part of December 1988 as his vacation period and that, by doing so, the Claimant earned the appropriate days of compensation to entitle him to the four days' of holiday pay.
Secondarily involved here is whether vacation days and previous holidays (Thanksgiving Day and day following Thanksgiving) are appropriate to be counted for "other than regularly assigned" employees in the calculation for holiday pay. For such employees, the holiday rule requires "compensation for service" to be "credited to 11 or more of the 30 calendar days immediately preceding the holiday". Many Awards have been concerned with this issue, with somewhat mixed results. As will be seen, however, this aspect is not determinative here.
There is no question that an employee on furlough is due the vacation pay to which his previous active service entitles him. The issue directly in point here is whether such employee may elect to designate a specific period for such vacation during his furlough. The Board concludes that th no rule support for such action. This issue has been previously resolved by Public Law Board 4768, Award 9, involving the same parties. That Award stated as follows: Form 1 Award No. 29936
The organization's dissent to this Award is worth noting. Therein, the organization states that the Vacation Agreement provides for three circumstances in which "in lieu of" vacation pay is appropriate, and since these do not include that of a furloughed employee with seniority, such should not be recognized as providing for "in lieu of" vacation payment. The Board is not convinced by this reasoning. The three circumstances listed in Appendix A all concern special conditions on which questions of vacation pay entitlement might otherwise be raised -- layoff of non-seniority employees; employees who are terminated: and active employees who are not released for vacation.
In the case of a furloughed employee, the question is not (as in the three exceptions) whether an employee has vacation pay entitlement, Rather, the question here is somewhat different -the assignment of vacation to specific not otherwise in active employment from which to obtain paid time off, the assignment of specific days to the vacation entitlement is without significance. Beyond this, it would clearly distort the meaning of holiday entitlement to suggest that a furloughed employee, simply by claiming a portion of his furlough as vacation time, could become eligible for holiday pay to which he is not otherwise entitled.
Separately, the Organization contends that the Carrier's correction of its "error" by payroll deduction is untimely. There is ample precedent for the right to correct such overpayments, and the Claim is not sustainable on this account.