(1) The Carrier violated the Agreement when it failed and refused to compensate Messrs. L. Gates, C. Jefferson, R. Brown, C. Laden, S. Gray, T. Allan, C. Perkins, R. Stewart, R. McCranie, M. Hudson, E. Myers, C. Perry, A. McCarter, D. Bean, T. Harris, C. Ownes, C. Wicks, R. Kurtz, M. McCann, D. Schindler, R. Van, J. Gatlin, M. Kayser, M. Mitchell, S. Wolf, W. Vickers, A. Smoot, N. Libell, R. Pruitt and S. Millard for the Christmas Day (1993), New Year's Eve (1993) and New Year's Day (1994) holidays (System File 1994-11/013-293-19).
(2) As a consequence of the violations referred to in Part (1) above, the Claimants shall be compensated eight (8) hours' pay at their respective straight time rates, for each of the holidays cited which the Carrier failed to compensate them for."
The Organization is seeking holiday pay for Claimants, employees of the Track Department and B&B Department, who were furloughed at the end of work on December 10, 1993,' and who, the Organization contends, should have been allowed to use their vacation to qualify for holiday pay for Christmas, New Year's Eve and New Year's Day. Carrier responds that furloughed employees were not on vacation but, instead, received pay in lieu of unused vacation, and that receipt of such pay does not count in fulfilling the requirements of the holiday pay rule. Carrier relies on Third Division Award 29936 in support of its position. Carrier further maintains that even under the Organization's theory of the claim, several Claimants would not have qualified and several others actually were paid for all or some of the holidays in question.
Rule 29B provides for holiday pay of eight hours at the pro rata rate, provided, "compensation for service paid him by the carrier is credited to 11 of the 30 calendar days immediately preceding the holiday..." Claimants had scheduled vacations during the year but had deferred taking their vacations because of the needs of Carrier's operation. On December 10, 1993, they were furloughed. The Organization contends that Claimants should be credited for the vacation days they had deferred and, accordingly, should qualify for holiday pay.
During handling on the property, Carrier pointed out that a number of Claimants did qualify and were paid for some or all of the holidays. The Organization agreed to withdraw those claims. Nevertheless, the Statement of Claim includes claims for S. Gray and T. Allen for Christmas and New Year's Eve; C. Wicks for Christmas; and S. Wolf for New Year's Eve and New Year's Day, even though those Claimants were paid. Accordingly, those claims must be denied.
During handling on the property, Carrier represented that a number of Claimants would not have had eleven days of compensated service within the thirty
calendar days preceding the holiday even if credited with vacation days remaining at the time they were furloughed. The Organization did not dispute the representations. Accordingly, the following claims must be denied:
D. Schindler - all three holidays W. Vickers - all three holidays A. Smoot - New Year's Day S. Millard - New Year's Day R. Brown - all three holidays C. Laden - all three holidays R. Stewart - all three holidays R. McCranie - all three holidays E. Meyers - all three holidays D. Bean - all three holidays T. Harris - all three holidays R. Van - all three holidays M. Kayser - all three holidays M. Mitchell - all three holidays R. Pruitt - all three holidays.
The remaining parts of the claim turn on whether vacation that the Claimants had yet to take as of the time of their furloughs counts as compensated service to fulfill the requirement of eleven days of compensated service within the thirty days preceding the holiday. It was undisputed on the property that the Claimants had scheduled their vacations during the year but that Carrier had required them to work during their scheduled vacations and to take the time off later in the year. They had not taken all or some of their vacation as of the date they were furloughed and sought to take them upon being furloughed. Carrier paid them for their unused vacation time but maintained that they received pay in lieu of vacation and that the time did not count toward the compensated service requirement for holiday pay.
Appendix B, Vacation Agreement, on its face addresses the instant situation. Section 5 provides: Form 1 Award No. 33476 ·,I
"Each employe who is entitled to vacation shall take same at the time assigned, and, while it is intended that the vacation date designated will be adhered to so far as practicable, the management shall have the right to defer same provided the employe is given as much advance notice as possible; not less than ten (10) days' notice shall be given except when emergency conditions prevent. If it becomes necessary to advance the designated date, at least thirty (30) days' notice will be given affected employe.
"If a carrier finds that it cannot release an employe for a vacation during the calendar year because of the requirements of the service, then such employe shall be paid in lieu of the vacation the allowance hereinafter provided ...."
Carrier SReLqxikaers' Dassen_:
to Third Division Award 33476_ (docket NIV~1..32~537)
(Referee Malin)
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 33476 DOCKET MW-32337
(Referee Malin)
According to the Carrier Members' Dissent, the Carrier should be allowed to make a mockery of the Vacation Agreement by requiring employes to forego their scheduled vacation period and avoid paying the Claimants for holiday pay to which they would have otherwise been entitled. It was undenied during the on-property handling of this dispute that a majority of the Claimants had scheduled vacation earlier in the year, but the Carrier requested that they work their scheduled vacation period and defer their vacations until later in the year. The Claimants agreed to do so and the Carrier repaid the Claimants by abolishing their jobs before they could take their vacations. Th key point in this case is the day to which the compensation is credited. The Claimants were compensated vacation days credited from December 9,1993 until their vacation had been exhausted, thereby qualifying them for holiday pay in accordance with Rule 29B.