« PreviousContinue »
Thereafter, the Master Mechanic tried to find a vacation relief employe for the Claimant's scheduled vacation period which was to run until June 27, 1959. However, his efforts proved to be unsuccessful. On June 12, 1959, the Claimant received the following note, dated June 10, 1959, from Agent D. H. Berry:
“Talked to Mr. H. E. Jamison this date about your vacation. He told me you were not to take vacation until relieved and notified by his office at Poplar Bluff, Mo."
In compliance with the above note, the Claimant worked during the period originally scheduled for his vacation and was paid at the applicable straight time rate. For reasons not relevant here, he did not take a vacation in 1959 and received compensation in lieu thereof after the end of that year.
He now claims compensation at the time and one-half rate for all time worked during the period from June 15 to June 27, 1959, inclusive.
1. The Claimant mainly relies on Article 5, Paragraph 1 of the Vacation Agreement, dated December 17, 1941, which reads, as far as pertinent, as follows:
"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.”
Referee Wayne L. Morse has interpreted the above provision in his Award of November 12, 1942, to mean that it "gives to the management the right to defer vacations ... for good and sufficient reason ..." and that “when such a situation arises, the management is obligated to give the employe as much advance notice as possible and in any event, not less than ten days' notice, except in case of an emergency."
It is undisputed that the Claimant was not given ten days' advance notice when his scheduled vacation was deferred. The Carrier contends that its inability to obtain a relief employe caused an emergency which relieved it from giving such notice. We disagree. The term “emergency” is not defined in the Vacation Agreement or in the Award of Referee Morse, and thus must be given its ordinary meaning. Websters' Third New International Dictionary (1961, p. 741) defines an "emergency” as denoting "an unforeseen combination of circumstances or the resulting state that calls for immediate action." Similarly, the term is defined in the American College Dictionary (Text Edition, 1948, p. 393) as referring to "an unforeseen occurrence; a sudden and urgent occasion for action.” The evidence before us does not disclose that such an unforeseen state of affairs calling for immediate action existed in the case at hand which would have freed the Carrier from its contractual obligation to give the ten days' notice. The record shows that the Master Mechanic assigned a specified vacation period to the Claimant and expressly advised him to be governed accordingly without making reasonably sure that a relief employe would be available. Only thereafter did he make any efforts to secure a relief employe. In other words, it was the Master Mechanic's oversight in not finding and assigning a relief employe before he scheduled the Claimant's vacation that made the deferment thereof necessary. We do not regard this situation as an "emergency” within the contemplation of the above definition. Accordingly, we hold that the Carrier violated Article 5, Paragraph 1, of the 1941 Vacation Agreement by giving the Claimant only three days instead of ten days' advance notice of the deferment of his scheduled vacation period.
2. In further support of its position, the Carrier argues that the Claimant consented to the deferment of his vacation period and thereby waived the contractual requirement of ten days' advance notice. The Claimant has denied the Carrier's contention and asserted that at no time did he consent to or agree upon the deferment of his vacation. There is no need to resolve this discrepancy. Even if one assumes for the sake of argument that the Claimant expressly or by implication consented to the deferment of his vacation, his action can have no legal effect. It is well settled in the law of labor relations that the terms of a labor agreement generally supersede any contrary understanding between an individual employe and his employer and that an individual agreement cannot be effective as a waiver of any benefit to which the employe otherwise would be entitled under the labor agreement. See: J. I. Case Co. v. N. L. R. B., 321 U.S. 322; 64 S. Ct. 576 (1944). Article 5, Paragraph 1 of the 1941 Vacation Agreement does not provide for a waiver of the ten days' advance notice by an individual employe. Hence, the Claimant could not validly waive the notice.
3. Article 1, Section 4 of the Vacation Agreement, dated August 21, 1954, prescribes 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. It is undisputed that the Claimant was paid at his regular straight time rate for the work he performed during the period of his scheduled vacation (June 15 through June 27, 1959). He also received compensation in lieu of his 1959 vacation after the end of that year. Thus, he is still entitled to four (4) hours' additional pay at the applicable straight time rate for each day he worked during the period of his scheduled vacation. His further claim for two and one-half times his regular rate for all work performed during said period is unjustified and hereby denied.
Claim partly sustained and partly denied in accordance with the above Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
ATTEST: Harry J. Sassaman
Dated at Chicago, Illinois, this 5th day of December, 1962.
Docket No. 3846
2-TM-CM-*62 NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES
THE TEXAS-MEXICAN RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current agreement Carman E. R. Saenz was unjustly deprived of the opportunity to earn wages in the amount of eight (8) hours on October 31, 1959.
2. That accordingly, the Texas-Mexican Railway Company be ordered to compensate Carman E. R. Saenz for eight (8) hours at his regular pro rata rate for October 31, 1959.
EMPLOYES' STATEMENT OF FACTS: On October 26, 1959, Bulletin No. 19-255 was posted by the Texas-Mexican Railway Company, hereinafter referred to as the carrier, at Laredo, Texas. The job referred to in Bulletin No. 19-255 has a work week of Monday through Friday, one (1) hour for lunch period, hours 7:00 A. M. to 4:00 P. M., rest days Saturday and Sunday.
On October 29, 1959, Carman Andres Cantu placed his bid in for this position and on the same date (October 29th), Carman E. R. Saenz, hereinafter referred to as the claimant, also placed his bid for this position, Bids expired at 4:00 P. M., October 30th, and on this date (October 30th) Notice No. 19-255 was issued, naming the claimant, Mr. E. R. Saenz, the successful bidder to Position 19, as outlined in the bulletin.
At the time the claimant bid in this new assignment, he was working a position of Thursday through Monday, rest days Tuesday and Wednesday, Instead of being permitted to remain on this position, the claimant was directed by supervision not to report for his regular assignment on October 31, 1959.
This matter has been handled up to and including the highest designated officer of the carrier, who has declined to adjust the matter.
The agreement effective September 1, 1949, as subsequently amended, is controlling.
POSITION OF EMPLOYES: Rule 1(h) of the agreement, reading:
“(h) Beginning of Work Week.
The term 'work week' for regularly assigned employes shall mean a week beginning on the first day on which the assignment is bulletined to work.” (Emphasis ours.)
was violated when the carrier refused to permit the claimant to work his regular position on October 31, 1959. The rule specifically sets out that the term "work week" shall mean the beginning of the first day the assignment is bulletined to work.
Rules 6(b) and (c), reading:
“(b) Work in excess of forty (40) straight time hours in any work week shall be paid for at one and one-half times the basic straight time rate except where such work is performed by an employe due to moving from one assignment to another or where days off are being accumulated under Paragraph (g)-(3), Section 2, Rule 1.
(c) Employes worked on more than five (5) days in a work week shall be paid one and one-half times the basic straight time rate for work on the sixth and seventh days of their work weeks, except where such work is performed by an employe due to moving from one assignment to another or where days off are being accumulated under Paragraph (g)-(3), Section 2, Rule 1."
provides for the transferring from one work week to another and that an employe can work more than 40 hours when transferring, or more than 5 days when transferring from one assignment to another at the straight time rate. There is nothing in the agreement to force an employe to lay of prior to transferring to a new position. He is the owner of the position he occupies until the starting time of the new position.
It has been ruled many times that employes who are successful bidders on new positions should be assigned on the first shift the new assignment is bulletined to work. The employe should not be disturbed on his former position until he assumes the duties of the new position, i.e., the starting time of the work week. Therefore, when the carrier required the claimant to lay off on October 31, 1959, they not only violated the agreement, but acted arbitrary to past understandings. The claimant suffered the loss of a day's pay due to the carrier's action in the instant case, and in light of the specific intent and meaning of the above quoted rules, the carrier should be required to compensate the claimant by making him whole for said loss of time.
Finally, the reasons hereinbefore set forth abundantly support the sustaining of this Statement of Dispute and the Honorable Members of your Division are respectfully requested to do so.
CARRIER'S STATEMENT OF FACTS: Carman E. h. Saenz was occupying a position as carman, assigned hours 8:00 A. M. to 5:00 P. M., daily except rest days and legal holidays. Rest days of this position were Tuesday and Wednesday. Mr. Saenz bid on bulletined position working 7:00 A. M. to 4:00 P. M., daily, except rest days and legal holidays, rest days being Saturday and Sunday. The new position was bulletined to expire 4:00 P. M., Friday, October 30th. At 4:00 P. M., October 30, 1959, the general car foreman, who was away from Laredo, on line, was notified by Mr. Luis Martinez, the local chairman of the carmen, who was acting as lead man and supervisor in the absence of Mr. Kuly, that Carman E. R. Saenz was the successful applicant to position which was bulletined to expire that date, and such position was not assigned to work the following day, which was Saturday, October 31, 1959. General car foreman advised the local chairman to notify Carman Saenz that he was assigned to the new position as bulletined, would not work October 31st on his old assignment. Local chairman advised bulletin clerk in the office of such assignment and bulletins were issued immediately, certifying same.
Claim was made December 21, 1959, by Mr. L. G. Martinez, Local Chairman, for eight (8) hours straight time, October 31, 1959, account Saenz being sent home on Saturday morning and not being allowed to work. The above letter advancing the claim, was answered by Mr. J. A. Kuly, General Car Foreman, as follows:
“This is in answer to your letter dated Dec. 30, 1959, relative to claim of E. R. Saenz when he bid in a new assignment and not working an extra day on old assignment, wish to answer your questions that the decision and interpretation was made by your then General Chairman Roe in conference with Mr. R. E. Johnson and verbally accepted by him and are being applied to assignments.
I am not in possession of the date of this conference as I was not in attendance."
Nothing further was heard from this claim until January 20, 1960, on which date Mr. W. H. Bond, General Chairman of the carmen, addressed a letter which was answered by the Carrier by letter dated February 2, 1960. This letter was answered by Mr. W. H. Bond, his letter of February 11, 1960, in which he acknowledged receipt of the letter and requested conference on the matter. Conference was set and held May 13, 1960, between Mr. W. H. Smith, Vice General Chairman, BRCA, and Mr. B. F. Wright, Jr., Personnel Officer, acting for Mr. R. E. Johnson.
It will be noted in confirmation of conference that the representative of the carrier advised Mr. Smith, the vice general chairman, that:
"Mr. Saenz had bid on an assignment that had rest days Saturday and Sunday and that, under the interpretation of former Vice General Chairman Roe, that when a man bids and gets a new job that he takes the conditions of the new assignment immediately on expiration of the bulletin, Mr. Saenz was assigned to the new position and, since the rest days of Saenz's new job were Saturday and Sunday, he was off as he should have been and therefore was not deprived of any work on October 31, 1959."
There was and has never been any exception taken by the carmen's organization to statement made in letter of confirmation of above described conference, providing that assignment should be made immediately upon expiration of the bulletin.
Since August 5, 1957, date that Mr. Roe made the interpretation described that a man should be immediately assigned to position on which he was bidding immediately on operation of bulletin, assignments have been handled in just