NATIONAL RAILROAD ADJUSTMENT BOARD CHICAGO, ILLINOIS AWARDS 9751 to 9835 THIRD DIVISION VOLUME 94 CHAMPLIN-SHEALY COMPANY 100 N. LaSalle Street Chicago 2, Illinois 365 Printed in U. S. A. Docket No. SG-9478 NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION Donald F. McMahon, Referee PARTIES TO DISPUTE: BROTHERHOOD OF RAILROAD SIGNALMEN ERIE RAILROAD COMPANY STATEMENT OF CLAIM: Grievance and protest of the General Committee of the Brotherhood of Railroad Signalmen of America on the Erie Railway Company that: The Carrier violated the Signalmen's Agreement and National Vacation Agreement of December 17, 1941, as amended, when it included on the Vacation Selection Form for 1956 a "Note" reading: "All vacations will begin on Monday." (Emphasis supplied) EMPLOYES' STATEMENT OF FACTS: Since 1942, effective date of the National Vacation Agreement, it has been the practice of this Carrier to permit its signal employes to select a vacation period of their choice, in seniority order, commencing on a date of their choice. This practice was followed through the 1955 vacation period without question from the Carrier. Beginning with the calendar year 1956, the Carrier prepared a new Vacation Selection Form for use by its signal employes in making selections for their vacations in 1956. The form was so prepared that all vacations had to start on Monday and end on Friday of each week, as listed on the Vacation Form. A "note" was added at the bottom of the Vacation Selection Form stating: "All vacations will begin on Monday." Under date of January 28, 1956, Local Chairman Edmond Parsloe filed a grievance and protest to the Vacation Selection Form and "Note" on the form with Supervisor J. H. Storms as follows: "In accordance with Rules No. 61 and No. 74 of our current Book of Agreements and the August 21, 1954 Agreement, Article V (a) I am filing grievance and protest to your "NOTE" on the 1956 vacation period selection form which reads: 'NOTE: ALL VACATION PERIODS WILL BEGIN ON MONDAY' "I am unable to find any section of the Vacation Agreement which states when vacation periods will begin, and we do not agree with this note. "In view of this 'NOTE' on the vacation period selection form now being furnished employees, consider this as notice that I will be unable to sign the 1956 vacation schedule until this matter has been settled. "Kindly acknowledge and render an early decision." After conferences were held and considerable correspondence, the grievance and protest was finally declined by Supervisor Storms in a letter dated March 9, 1956, as follows: "Referring to your letter of Jan. 28, filing grievance and protest to the 'Note' on the vacation selection form which reads: 'Note-all Vacations will begin on Monday.' "There is nothing in the Vacation Agreement that says the railroad company cannot state what day the vacation period will start. With this understanding we shall proceed to complete the 1956 vacation schedule and we are proceeding accordingly." The grievance and protest was then appealed and progressed in the usual and proper manner, up to and including the highest officer of the Carrier designated to handle such grievances and protests, without securing a satisfactory settlement. The appeal to the highest officer of the Carrier was made by letter to Assistant Vice President G. C. White, dated May 14, 1956, which lists a sample of the form and "note" on the form, as follows: "This is an appeal from decision of Mr. J. S. Parsons, Asst. Chief Engineer M. of W., in connection with case involving Carrier's new Vacation Selection form and Note at bottom-'All Vacations Will Begin on Monday.' "Beginning with the year 1956 the Carrier prepared a new vacation selection form for use of employes when selecting vacation periods. The form is so prepared that all vacations must start on Monday. A 'Note' was also added at bottom of form-'Note-All Vacations Will Begin on Monday.' "Sample of form: 'Erie Railroad Company 'Following is my preference of Vacation Period for 1956 Roster Rank... Location... Signed... Occupation... Note: All Vacations will begin on Monday' "Since the effective date of the Vacation Agreement (January 1, 1942) it was agreed and it was the practice to permit employes to select vacation periods of their choice, relative seniority standing. "Up to and including the year 1955 it has been the practice to permit employes to start their vacations on any day in the week. No where in the Vacation Agreement is there a rule requiring that the vacation period of an employe shall start with the first day of the week (Monday). The rule, Article IV (a), plainly states that, 'Vacations may be taken from January 1st to December 31st. * * *Additionally and as evidence that the Carrier recognizes the fact that the rule provides no 'fence' on the vacation period, is the fact that, as stated above, since the effective date of the Vacation Agreement (January 1, 1942) the agreed-upon vacation periods, when so requested by the employe, have, in many instances, provided a starting date other than Monday, or the first day of the employes work week. "Carrier's own admission in another case, clearly says: "The practice in and of itself constitutes a mutual intent the same as though expressly set forth in the agreement and cannot be eliminated short of negotiation. Award 6859, 6904, 6996 and many others hold that where, as here, there is no rule to be contrary, past conduct of the parties expresses their intent.' "In my discussions of this matter, it was pointed out to me that the Cleveland office is trying to establish a new policy with the hope of chiseling certain employes out of paid holidays. This, in itself, is contrary to the Agreement. Referee W. L. Morse, in his interpretation of the Vacation Agreement, made the following statement: "The mere fact that the granting of a vacation to a given employe at a particular time may cause some inconvenience or annoyance to the management, or increased costs, or necessitate some reorganization of operations, provides no justification for the Carrier refusing to grant the vacation under the terms of Article 4 of the agreement.' "We still feel that the carrier is in violation of the Vacation Agreement when they insist that employes vacation must start on Monday, and will not permit him to take his vacation either following or prior to a holiday. In view of what is said above we trust that you will see your way clear to correct this situation without delay. "If you will be available in the near future, and so desire, we will be glad to discuss this case with you. Otherwise, we would appreciate your decision. "A copy of this letter is being furnished Mr. J. S. Parsons, which will serve as notice that his alleged decision is not acceptable and the case is being appealed to your office. "Please acknowledge and advise." |