Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7849
 SECOND DIVISION Docket No. 7560
 2-CR-CM-' 7 9



Parties to Dispute: ( (Carmen)

Dispute: Claim of Employes:




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.

The dispute herein relates to the day chosen to celebrate Veteran's Days a holiday under the applicable Agreement. Under Federal Law, effective January 1, 1971, Veteran's Day was to be observed as a national holiday on the fourth Monday in October. On April 5, 1973 the State of Pennsylvania changed the date for the observance of Veteran's Day back to the original date of November 11. The Agreement between the parties did not specify the date for the observance of the holiday.

 By Letter Agreement dated October 3, 1973 the parties agreed that Veteran's Day would be celebrated on the fourth Monday in October, as provided by the Federal Laws in spite of the new State Statute. The holiday was eeleb rated in accordance with the Letter Agreement in 1973 and 1974.
 Foam 1 Ataard No, 78+9
 Page 2 Docket No. 7560
 2-CR-CM-'79

 In 1975 Petitioner's official asked Carrier on several occasions about the celebration of Veteran's Day and was repeatedly told that Carrier would continue with the October date. On October 21., 1975, after Carrier had determined that a majority of other eastern Carriers were observing the holiday on November 11th, Carrier notified the General Chairman that November 1.1 would be the day for the holiday rather than the fourth Monday in October. This action triggered the Claim herein.

 The Organization argues that the Letter Agreement of October, 1973 was binding and that Carrier had no right to ab rograte that understanding unilaterally. Further, the Organization states that there was no question of State Law since Carrier had celebrated the holiday fox two years in accordance with the Agreement and contrary to the law, In short, Petitioner contends that the parties were bound by the Agreement made and were obliged to conform to that Agreement unless changed by negotiations.

 Carrier's .principle argument is that the Letter Agreement was in conflict with the law, and the law is controlling. Further, it is urged that all the employes involved received their appropriate holiday pay (for the date it was celebrated) and were m t harmed. Carrier argues that to sustain the Claim would result in unjust enrichment for the employes involved. It is argued that the Agreement makes no provision for penalty payments for alleged violations such as that in this dispute.

 It is apparent that the organization was aroused and concerned by the short notice of the change of dates for celebration of this holiday. It also is clear that Carrier would have been well advised to have discussed the matter with Petitioner before issuing its decision, particularly in view of the earlier letter understanding. However, two elements axe controlling in this dispute. First, the cau,rts have held that the state laws axe controlling with respect to the dates on which holidays will b e observed (Consolidated Marketing, Inc. v. Busi., La. App, 1972, 256 So. 2nd 695), Secondly, a fundamental tenet of contract law mandates that contractual provisions in violation of law are void, Hence, in spite of the shoat notice, lack of discussion and violation of law for two years, Carrier had the right to make the change in 1975 in order to comply with the State Statute. Notwithstanding the Letter Agreement, conforming with the law was paramount. Fox the reasons indicated, the Claim must be denied.




                          By Order of Second Division


Attest: Executive Secretary
 Tonal Railroad Adjus oaxd

 By
 -7 em&rie Brasch - Administxati've 4ssstarrt

 Dated at Chicago, Illinois, this 21st day of February, 1979.
      LABOR MEMBER'S DISSENT TO AWARDS NO. 7849 & 7850

      DOCKET NOS. 7560 & 7561

" The~Majority is in error by stating that the General Chairman was notified on October 21, 1975 that Carrier would observe Veteran's Day on November 11, 1975. The General Chairman of another craft was given such notice.
 The Majority recognizes that Veteran's :day was observed on the day observed nationally by letter Agreement. Carrier
 changed that date without negotiation and the Majority upholds
 changing the Agreement on the presumption that the Holiday must be observed on the day recognized by the State.
 The Majority has gone far. afield to reach such conclusion. Tna parties have the right under the Railway Labor Act to reach Agree count observing any Holiday on any day they so choose. The parties must abide by the bargain node until changed by Agreement. The Majority failed to recognize that many employes under contract and without a contract do rot observe Veteran's Day as a Holiday. By the bindings in these Awards, those employer and their employers are in violation of State law. Such presumption is ill advised.

      We must dissent to such. findings.


                                  ~,._~. ~


                                      rs1

                                      :E_'E~ i

                                Labor h1ember