There was no reason why the carrier could not get someone to fill this vacation vacancy since in the past Carman L. G. Pullen, Dupo, Illinois, had gone to Valmeyer to fill the claimant's position when he was off sick, etc., and he worked the job while a system call was out for a carman to fill the temporary vacancy following the claimant's injury. Article 5 of the Vacation Agreement, reading in pertinent part: "5. 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 so affected is given as much advance notice as possible; not less than ten (10) days' notice shall be given except when emergency conditions prevent...." (Emphasis ours.) was violated when the claimant was given three (3) days' notice prior to the change of his vacation date. Since no "emergency" existed, the carrier was duty bound to notify the claimant at least ten (10) days prior to changing the date if any emergency of operational requirement existed, and since this was not the case (no emergency existed) the carrier violated the provisions of the agreement, quoted above. The agreements quoted herein in pertinent part are crystal clear as to meaning and intent. In line with the provisions of the agreements the carrier was in violation of said agreements when they required the claimant to work during his regular assigned vacation without notifying the local committee, and then refused to compensate claimant as provided for in the agreement. Therefore, the employes ask your Honorable Board to so find in favor of the claimant. CARRIER'S STATEMENT OF FACTS: 1. There is an agreement between the Missouri Pacific Railroad Company and System Federation No. 2, including the Brotherhood Railway Carmen of America. 2. Carman E. W. Crouch, the claimant herein, lives at Harrisonville, Illinois. He holds home seniority at Dupo, Illinois, where a large yard and supporting facilities are located. He works at Valmeyer, Illinois, a one-man point, a few miles south of Dupo, whenever possible, since Valmeyer is closer to his home. Crouch had been working at Valmeyer in 1958, but the car inspector position at that point was abolished in the fall of the year and Crouch exercised his seniority at Dupo. 3. When the schedule for vacations for 1959 was made up in December of 1958, Crouch was working at Dupo. He did not file the usual request for vacation dates and his name was not placed on the vacation schedule because of his recent transfer from Valmeyer. Crouch did not notify anyone or complain of the omission. By May of 1959, the job at Valmeyer had been reestablished and Crouch had bid in the job and was working there. On May 6, 1959, Crouch wrote Master Mechanic Jamison at Poplar Bluff, Missouri, requesting that his vacation be scheduled from June 8 to June 19, 1959, but if not then, any time in June, July or August. 4. Upon receipt of the request, the master mechanic scheduled his vacation to begin June 15, 1959, to run for two weeks, thus being able to grant him his vacation for a part of the time that Crouch preferred. 5. Immediately thereafter, efforts were made to find a vacation relief employe. The master mechanic canvassed the men on his territory in an effort to find a carman who wished to work at Valmeyer during the two weeks. He was unable to find a carman. He then asked the chief mechanical officer to put out what is referred to as a "system call" for carmen. A system call is a notice sent to the offices of the master mechanics on the Western and Southern Districts notifying them of the work opportunity. The information is passed along to local chairmen and others interested to see if a furloughed employe wishes to transfer under Rule 23 from his home station to the point where work is available. This is the regular and accepted procedure for obtaining a relief employe and normally a man is found who wants the work. In this case, no furloughed employe responded to the call. This exhausted the usual means for obtaining employes for vacation relief purposes. Employment was relatively full at that time and there were few men furloughed looking for work which was the reason for the failure to find a relief employe. 6. On June 8, 1959, claimant was notified that a relief employe was not available and that it would be necessary to defer his vacation. The notice was given to claimant by the agent at Valmeyer and claimant raised no objection to the deferment. Claimant sent in his time cards for the period from June 15 to 27 at the regular rate and made no request for vacation pay or for pay at the time and one-half rate for the work performed during that period. 7. Claimant did not work after July 24, 1959, saying that he was unable to work because of alleged injury to his back incurred on June 24, the day a spot check was made of his work. As soon as the master mechanic learned claimant was not working, the master mechanic offered to schedule the vacation during August while he was off, claimant having said it would be satisfactory to schedule his vacation in August if he could not get his preferred dates. Claimant refused to select any dates for his vacation. 8. Because claimant had never objected to the deferment of his vacation, the carrier was surprised to receive a claim from the local chairman on July 28, 1959, a month later, requesting that claimant be paid additionally at the time and one-half rate for the period from June 15 through June 27 on the theory that claimant had been required to work during his vacation even though claimant had concurred in the deferment of his vacation. The claim was filed with the master mechanic, who denied the claim, following which the general chairman appealed to the chief mechanical officer and the chief personnel officer. The latter declined the claim for the reasons stated in the following letter: "St. Louis 3, Missouri Carmen Mr. W. H. Bond Dear Sir: Please refer to your letter of December 11, 1959, appealing from decision of Chief Mechanical Officer Christy time claim on behalf of Carman E. W. Crouch, Valmeyer, Illinois, for 10 days at the time and one-half rate starting June 15, 1959, account claimant's vacation scheduled to start at that time being deferred on less than 10 days' notice prior thereto allegedly in violation of the Vacation Agreement and Article I, Section 4, of the Agreement of August 21, 1954. As we understand the facts, claimant had been working at Valmeyer, Illinois, prior to 1959 but was working at Dupo when vacations for 1959 were scheduled. He later moved back to Valmeyer. Because of the moves from Valmeyer to Dupo and back, claimant's vacation was not included in the schedule at the beginning of the year. For that reason, he wrote Master Mechanic Jamison on May 6, 1959, asking that his vacation be scheduled from June 8 to June 19, 1959, but if not then, any time in June, July or August. Upon receipt of that request, the Master Mechanic scheduled his vacation to begin June 15, 1959, to which claimant made no objection. After receipt of the request for the vacation dates, a system call was put out in an effort to obtain a relief employe. The effort was not successful and on June 8, 1959, claimant was notified that it would be necessary to defer his vacation since no relief employe was available. The claimant was notified of the deferment through the Agent at Valmeyer and claimant raised no objection to the deferment. Claimant continued to work regularly until June 30, 1959, when he laid off due to an injury he allegedly received on June 24, 1959, the day a surprise check was made on his work. Claimant returned to work July 8 and worked regularly including considerable overtime until he again laid off on July 24, 1959, the day set for a disciplinary investigation held account claimant's failure to properly service treat journal boxes noted on the surprise check. After claimant laid off the second time, the Master Mechanic offered to schedule claimant's vacation during the period he was off. Although still within the three months period which he said would be satisfactory for his vacation, claimant failed and refused to agree to any dates for his vacation prior to his discharge for cause. The filing of the instant claim by the local chairman on July 28, 1959, was the first the Carrier knew that claimant was taking the position he had not agreed to the deferment of the vacation. There is no showing that claimant suffered the slightest loss or was caused inconvenience by the deferment. Since claimant did not object to the deferment of his vacation when informed no relief employe was available, he consented to the deferment and there was no violation of the Vacation Agreement. Accordingly, the claim is respectfully declined. Yours truly, B. W. Smith" 9. Since claimant had refused to select dates for his vacation during 1959, he was allowed pay in lieu of a vacation after the end of the year. Claimant has not worked since July 24, 1959, and has sued the Carrier for $75,000 damages for the personal injury allegedly received on June 24. POSITION OF CARRIER: It is the position of the carrier that claimant consented to the deferment of his vacation, thereby waiving the requirements of Article 5 of the vacation agreement providing for not less than ten days' notice of deferment. Furthermore, it is the position of the carrier that the inability to find a relief employe to work at Valmeyer created an emergency condition which made it unnecessary to give the ten days' notice referred to in said Article 5. Since claimant has been paid for the work which he performed during the period June 15 through June 26 at the proper rate, he is entitled to no further compensation under the agreement, and the claim must be declined. As we have shown above, claimant requested his vacation to be scheduled from June 8 through June 19, or, if that was not possible, any time during June, July or August. Claimant did not make the request until May 6. The master mechanic was not able to arrange the schedule to permit claimant to leave on June 8, but thought that he would have time to obtain a relief employe by June 15 and scheduled the vacation accordingly. Every effort was made to obtain a relief employe, but the effort was unsuccessful. The agent at Valmeyer notified claimant on June 8 that it had not been possible to obtain a relief employe. Claimant made no objection to having his vacation rescheduled, thereby consenting to the rescheduling. There is nothing in the agreement which prevents an officer of the carrier and the employe agreeing to a change in the vacation schedule. The provisions of Article 5 of the vacation agreement give the carrier the right to change the vacation schedule under certain circumstances even if the employe does not agree. Those provisions need not be considered where the employe consents to the rescheduling of the vacation. The proof that claimant consented to the deferment is found in the facts that he made no objection when notified by the agent and that he filed his time cards in the normal manner for the work performed and not on the basis that he had been required to work during his vacation. Here the ten-day notice of deferment was not required because claimant consented to the deferment. It has always been recognized on this carrier that inability to obtain a relief employe for a position which must be filled each working day is an emergency which justifies the deferment of a vacation. Article 5 of the vacation agreement anticipates this possibility and provides that the management shall have the right to defer a vacation provided "... the employe so affected is given as much advance notice as possible; not less than ten (10) days' notice shall be given except when emergency conditions prevent." Because of the shortness of time after claimant requested, on May 6, that his vacation be scheduled in June, the carrier was not able to complete the system call in its effort to obtain a relief employe until less than ten days prior to June 15. The carrier had continued its effort to obtain a relief employe until it became apparent that no furloughed employe wished to transfer to Valmeyer. As soon as that determination was made, claimant was notified, thereby giving him as much advance notice as possible under the circumstances. Those responsible for the operation of the railroad determined that the demands of the service made it essential to have a carman at Valmeyer during the period in dispute. Referee Morse in interpreting Article 5 of the vacation agreement, said this was a good and sufficient reason for deferring a vacation. When the effort to find a relief employe proved unsuccessful, an emergency arose which did not permit the giving of the ten-day notice. For the reasons stated, it is apparent that there was no violation of the vacation agreement. We also point out that there is no basis for the monetary claim set forth in the letter of intent filed with your Board. The claim requests that Carman Crouch shall be additionally compensated — "at the time and one-half rate for all time worked during his vacation period of ten (10) days which was scheduled from June 15th to June 27th, 1959, inclusive." Article 5 of the vacation agreement, relied on by claimant, merely provides that an employe "shall be paid the time and one-half rate for work performed during his vacation period in addition to his regular vacation pay." Claimant has been paid for the work he performed during the period his vacation was originally scheduled in addition to his regular vacation pay. The claim requests your Board to order the carrier "to additionally compensate Carman E. W. Crouch at the time and one-half rate for all time worked . . ." from June 15 through June 27, 1959, for which he has already been paid for working. This would result in claimant being paid two and one-half times his regular rate for the period from June 15 through June 27 in addition to his regular vacation pay. Article 5 of the vacation agreement does not require a carrier to pay two and one-half times the regular rate even where an employe is required to work during his vacation period. Part 2 of the claim must be denied in any event because the rules do not support the claim even under the employes' theory. Prior to the time claimant's vacation was scheduled every effort was made to find a relief employe. When a relief employe could not be found, an emergency was created, making it necessary to defer his vacation. Claimant was notified of the necessity to defer the vacation and he consented to it. He filed his time cards for the period at the regular rate. A month later, the general chairman filed a claim. It is obvious it did not occur to claimant to complain until after the spot check had been made of his work and he allegedly had suffered a personal injury. There was no violation of the vacation agreement and the claim must be denied. FINDINGS: The Second 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. The Claimant, E. W. Crouch, was employed by the Carrier as a Carman at Valmeyer, Illinois, a one-man station, at the time here relevant. On May 6, 1959, he requested Master Mechanic H. E. Jamison to schedule his vacation from June 8 to June 19, 1959, or if this was not feasible, at any time during June, July or August, 1959. In answer to this request, Jamison wrote the Claimant a letter, dated May 12, 1959, which reads, as far as pertinent, as follows: "Please be advised that your vacation is set up on my schedule for June 16th, but due to your rest days being changed, it will be granted June 15th, the beginning of your work week. Please be governed accordingly." |