The Claimant held a regular assignment as a Relief Ticket Agent in Texarkana, Arkansas, when she requested vacation time for 2002. On February 28, 2002, the Claimant's position was abolished. At this point her status changed to unassigned. On March 22, 2002, she was notified that her unassigned status was changed to furloughed status account no work at her location. As noted above, the Claimant had vacation scheduled for the five work days commencing October 26, 2002.
On September 19, 2002, the Organization's General Chairman submitted, on behalf of the Claimant, a request for a lump sum payment of 40 hours' pay as the Claimant's vacation pay for the five days. Pertinent parts of that letter and Article XIV of the 1991 Mediation Agreement on which the request for payment is based are cited below:
The record reveals that the General Chairman's September 19, 2002, letter went unanswered by Carrier officials. The Claimant was not paid her vacation pay as requested.
On November 7, 2002, the Organization filed the instant claim. It was denied by the Carrier at all levels and placed before the Board for final resolution.
Prior to this claim being placed before the Board, the record reveals that the Claimant was paid 120 hours of vacation pay on December 13, 2002. The issue put before the Board at this point is whether the Claimant should have been paid vacation pay prior to October 26, the first day of her approved vacation, or whether the Carrier had the right to withhold payment until the end of December, as it did in this case.
The Board reviewed the arguments presented by both parties. The more reasonable position in this case is held by the Organization. Article XIV can logically be interpreted to include furloughed employees under the term "Employee," as used in that Article.
The position taken by the Carrier that no contract language covers the rights of furloughed employees to request a lump sum payment of his or her vacation pay is not persuasive.
In this instance, therefore, the Board finds that Article XIV (i) of the 1991 Mediation Agreement applies. The Board has also concluded that because the Claimant was paid 120 hours of vacation pay on December 13, 2002, the issue of money due has been resolved and that aspect of the claim is moot.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 39517. DOCKET MW-376$7
AND
AWARD 3951$,, DOCKET MW-37688
(Referee Meyers)
It has been said more than once that one school of thought among railroad industry arbitration practitioners is that dissents are not worth the paper they are printed on because they rarely consist of ante but a regurgitation of the arguments which were considered by the Board and rejected. In this case, the Majority apparently fiargM the principles in contracting out of work cases and simply followed the Carrier's submission when this award was written. The very way the Carrier teed this case smacks of bad faith and for the Majority to condone such action clearly defiles the entire railroad arbitration process.
The Majority's err here was to accept the Carrier's economic reasons for contracting out this work and stating that they are acceptable reasons therefor. The Majority held that "In this case, the Carrier did not own the appropriate equipment to perform the work and it did not make economic sense to lease the specialized equipment." The Majority's opinion flies in the face of the December 11,1981 Letter of Understanding wherein that agreement cleariy states the following,
It is crystal clear that the parties did not consider any possible economic aspects of their actions when they entered into the December 11, 1981 Letter of Understanding as there was no language in said Understanding that would limit the scope thereof based on an economic model. Inasmuch as such was the case, the Majority's assertion that it was proper to consider economic aspects of this case as a reason to deny the claim flies in the face of the December 11, 1981 Letter of Understanding.
The award is therefore based on a faulty premise, palpably erroneous and of no precedential value. Therefore, I dissent.