only with the question as to what constitutes such holidays. Holidays are designated by law or by proclamation. The statute of the State of Illinois (Revised Statutes 1937, Chapter 98, Section 18) covering this question, reads as follows:

"The statute of the State of Missouri (Revised Statutes of Missouri 1929, Chapter 127, Section 14222) reads as follows:

"Since the holidays in dispute are fixed by law and the Illinois and Missouri statutes rule that when any of these holidays fall on Sundays, the Monday following becomes the holiday by law, it is the position of the Carrier that the Monday so observed becomes in fact the holiday named in Rule No. 15. Since these statutes designate the Mondays referred to as being in fact the holidays stated in Rule No. 15, the Carrier is without any authority to assert that the Sundays, instead of Mondays, constituted such holidays, and if the positions of the Carrier and the Employes were reversed, and the Employes were claiming Monday as a holiday, because so fixed by law, the Carrier would be compelled to admit that the weight of evidence would all be ono the side of the Employes and would expect their claim to be sustained.

"It is plain that this interpretation of the Sunday and holiday rule in their schedule has been accepted by the Employes, as the practice of so observing such holidays that fall on Sundays has been in effect prior to any agreement with the Telegraphers or the adoption of any Sunday and holiday rule in such agreement, and continued without protest, complaint or claim until protest addressed to the Superintendents by General Chairman, E. E. Gentz, dated May 28, 1937, having reference to bulletin to agents, telegraphers and towermen, advising them that Monday, May 31, 1937, would be observed as Decoration Day, and that Sunday hours by such employes would be worked on that day.

"Attention is called to the underlining in the Carrier's quotation of Rule No. 15, above. It will be observed that the stipulation is that the pro rata hourly rate will be paid when the entire number of hours constituting the regular week-day assignment is worked. The third paragraph of the rule fixes the compensation where less than the full day's assignment is worked. The Employes are paid according to this rule. Such of them as perform no service on these holidays are not paid, and those whose Sunday and holiday assignment provides for a call on such days are paid for the call at overtime rates.

"There is nothing in this rule that requires the Carrier to work employes on holidays. On the contrary, the rule indicates the intention that telegraphers will be excused from holiday service, and the rule also plainly indicates that when so excused, they will not be paid for the day unless used.

"It is the position of the Carrier that the claim of the Employes is without merit and should be declined."

OPINION OF BOARD: Decoration Day 1937, Fourth of July 1937, Christmas Day 1938 and New Year's Day 1939 fell on Sunday. The Management notified the employes prior to the days in question that Monday would be observed as the holiday and such of the Employes as were required to work on that day would be paid in accordance with Rule 15 of the Agreement covering Sunday and holiday service. Some of the employes were not worked at all and received no pay, while others were worked a part of the day and were paid accordingly. The claim is for a full day's pay on each of the days involved for all employes affected.

The prevailing agreement between the parties became effective February 16, 1929. Certain supplemental modifications have been made, some of which will be referred to later. Rule 15, as incorporated in the Agreement in 1929 reads as follows:

"Telegraphers will be excused from Sunday service whenever possible without detriment to the service.

"Time worked on Sundays and the following holidays: New Year's, Washington's Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving and Christmas shall be paid for at the pro rata hourly rate when the entire number of hours constituting the regular week day assignment are worked.

"When notified or called to work on Sundays and the above specified holidays, a less number of hours than constitute a day's work within the limits of the regular week day assignment, employes shall be paid a minimum allowance of two hours at overtime rate for two hours work or less and at the pro rata hourly rate after the second hour of each tour of duty. Time worked before or after the limits of the regular week-day assignment shall be paid for in accordance with Rule No. 3."

When the agreement was executed it contained no guarantee rule which permitted Carrier to lay off employes on days when their services were not needed. In August, 1934, the parties entered into a supplemental agreement which included, among other things, a guarantee rule and which suspended Rule 15 governing Sunday and holiday service. These provisions of the Supplemental Agreement are set out below:

. "Regularly assigned employes will receive one day's pay within each twenty-four (24) hours, according to location occupied, or to which entitled, if ready for service and not used, or if required on duty less than the required minimum number of hours, as per location, except on relief days."

"During the operation of this six-day week plan, rules governing Sunday and holiday service are hereby suspended."

By an Agreement dated June 20, 1936, Rule 15 was restored to the agreement "with the exception that those occupying six day per week positions created by the agreement may be relieved on week days."

Petitioner contends that under the provisions of Rule 15 Carrier did not have the right to deprive the employes of a full day's work on the four Mondays following the holidays which fell on Sundays. This contention is based largely on the fact that many other similar agreements, including some with this Carrier contain a proviso that:

"When any of the above holidays fall on Sunday, the day observed by the State, Nation or by proclamation shall be considered the holiday."

This language was incorporated in the Sunday and holiday rule by U. S. Labor Board Decision 757 issued March 3, 1922. The Alton Railroad was not a party to this case.

The record shows that Rule 15 has been in effect on this Carrier since October 1, 1918 and that during all this period it has been the practice to observe Monday as a holiday when any of the holidays specified in the rule fell on Sunday. The proviso quoted above was promulgated after Rule 15 first became effective and as it merely confirmed the practice already in effect on this Carrier, there was no apparent need to incorporate it in the rule as it could add nothing thereto or take nothing therefrom. When the "Guarantee Rule" became effective on this property the duty rested

upon the party that desired to make it applicable to any holidays as then observed to see to it that such holidays were not excepted therefrom. Then was the time to speak if a change in the prevailing practice under the rule was desired.

Moreover, legal holidays exist only through some statutory enactment. The States of Illinois and Missouri, in which this Carrier operates, makes Monday the legal holiday when any of the days named in Rule 15 fall on Sunday. Therefore, in each case Monday was the legal holiday, and it is the opinion of the Board that in the absence of a Federal Statute to the contrary, (and there is none) the day fixed by the Statutes of the States through which this Carrier operates constitutes the holidays to be observed. The Board holds that in each instance Monday was the holiday specified in Rule 15.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

AWARD