Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43540 Docket No. MW-43012 19-3-NRAB-00003-150198

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company (former Missouri Pacific Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier refused to allow Mr.

L. Ross' December 20, 2013 request to observe thirty-eight (38) hours of vacation and thereafter failed and refused to compensate him in lieu of observing said vacation entitlement (System File UP503JF14/1600076 MPR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant L. Ross shall be compensated for thirty-eight (38) hours at the applicable time and one-half rate of pay."

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 were given due notice of hearing thereon.

The Claimant established and holds seniority in the Carrier's Maintenance of Way Department as a grapple truck driver. At the time of this dispute, he was working a T-2 scheduleon Gang #9142 under Supervisor C. Rainy.In March 2013, the Claimant received a seniority letter informing him that he was eligible for 80 hours of vacation for the 2013 calendar year. On December 20, 2013, the Claimant requested to use his remaining vacation days before the end of the calendar year. Supervisor Rainey denied his request. The Claimant requested that the Carrier compensate him 'in lieu of' observing his remaining vacation entitlement for 2013.

The Organization filed a claim on February 6, 2014, seeking compensation for 38 hours of overtime, in accord with Rule 54 of the Agreement. The Carrier denied the claim on March 10, 2014, contending that the Claimant had been instructed to take his vacation before the last half and failed to comply with those instructions. The parties were unable to resolve the claim on-property and it is now properly before this Board for final adjudication.

Rule 54 of the parties' Agreement provides, in part,

"VACATIONS

Rule 54. Employees subject to the provisions of this Agreement are covered by the National Vacation Agreement of December 7, 1941, as subsequently amended.

The following is a synthesis of that agreement and its subsequent amendments. If any dispute arises as to the proper interpretation or application of any provisions, the terms of the appropriate Vacation Agreement will apply.

• * *

(d) Each employee who is entitled to vacation will take same at the time assigned, and, while it is intended that the vacation date designated will be adhered to so far as practicable, management will have the right to defer sameprovidedtheemployeesoaffectedisgivenasmuchnoticeaspossible;

not less than ten (10) days' notice will be given except when emergency conditionsprevent.Ifitbecomesnecessary toadvancethedesignateddate, at least thirty (30) days' notice will be given affected employee.

If a Carrier finds that it cannot release an employee for a vacation during the calendar year because of the requirements of the service, then such employee will be paid in lieu of the vacation the allowance hereinafter provided.

Such employeewill bepaid the time and one-half rate forwork performed during his vacation period in addition to his regular vacation pay."

The Organization contends that the Claimant earned and was entitled to take 80 hours of vacation in 2013 but did not use it all. The Organization contends that the Carrier improperly refused to allow him to take his unused vacation but did not assert that it was because of the requirements of the service. The Organization contends that the Claimant's honest error should not deprive him of his contractual vacation benefit, because responsibility for setting vacation lies with the Carrier. The Organization contendsthattheClaimantisentitledtopaymentinlieuofvacationfor38unusedhours.

The Carrier contends that the Claimant does not meet the necessary criteria to be compensated for vacation that was not taken by the end of 2013. The Carrier contends that the Claimant could have used all of his hours of vacation but failed to do so. The Carrier contends that Supervisor Rainy told the Claimant to take all vacation by the last half of his shifts, so it was his responsibility to schedule the vacation. The Carrier contends that the Claimant left 26 vacation hours unused.

Previous decisions of this Board have found that the Carrier has both the ultimate right and responsibility to set vacation dates. It is the Carrier's obligation to schedule vacations. The Claimant tried to take his vacation before the end of the 2013 calendar year, but his request was disallowed. The Carrier has not asserted that his request was denied due to the requirements of the service. In fact, the Carrier's objection was that the Claimant was not scheduled to work the remainder of the year because of the T-2 schedule. After a careful reading of the record, we sustain the claim. The Claimant must be paid in lieu of the vacation, at his regular vacation rate, as the Claimant was not scheduled to work and did not perform work during the time he sought to use his vacation. The Board remands to the parties the calculation of the number of days that the Claimant had unused at the end of the calendar year.

AWARD

Claim sustained in accordance with the Findings.

ORDER

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.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 27th day of March 2019.