lc) The rule itself contemplates that there will be employes "not used" at all, or used "less than eight (8) hours."

Nothing in the above rule, or in any other rule of the schedule, requires that a regularly assigned telegrapher actually work on a holiday. The only guarantee is of compensation. In the two instances submitted payment as required has been made.

The national agreement of August 21, 1954 extended holiday pay to non-operating employes generally. There is nothing contained therein compelling the performance of work or coverage of assignments on holidays. The avowed purpose of the organizations in serving their proposals and progressing the case was entirely different. It was to protect the earnings of employes in holiday weeks. This was confirmed by the Emergency Board which recommended the holiday rule, now Article II of the August 21, 1954 contract: " . to maintain normal take-home pay in a week in which a holiday occurred.

The organizations have gone further. As stated in Award 312:

"Discouragement and restriction of Sunday and holiday work by employes who work regularly on other days is a recognized and accepted item of public policy. It is an avowed policy of organized labor." (Emphasis supplied.)

The Telegraphers and other non-operating brotherhoods have followed that policy. In the proposals that culminated in the August 21, 1954 agreement they proposed that pay for those employes required to work on a holiday be at double the straight time rate, in addition to straight time for the holiday as such, a total of triple time. Employes' President, Mr. G. E. Leighty, testified in support of this proposal that it was designed as a penalty for requiring such work and with the expectation that it would result in the elimination of much work on holidays which had been required of employes under the then existing rules. (Record, pp. 134, 135, 148.)

At the insistence of the brotherhoods work on holidays is generally paid at the premium rate. The purpose is identical with overtime rates geinerally, that is to minimize the amount that will be required by imposing a penalty if it is required. A familiar example in the legislative field is the Fair Labor Standards Act.

The language of the rule relied on does not either expressly or by implication require that any assignment be worked on a holiday. Affirmatively it recognizes that service may be omitted in whole or in part, imposing in such circumstances only an obligation to pay regularly assigned employes. Even were there ambiguity, of which Carrier perceives none, the established purpose of the non-operating unions to discourage holiday work is persuasive that any doubt should be resolved against an interpretation requiring holiday work.

The claim should be denied.

All data contained herein have been presented to petitioners.

OPINION OF BOARD: The facts in this case are not in dispute. Claimants occupy seven day positions, described in Article 3 infra as "necessary to be regularly represented for eight hours a day, seven days a week * * *".

They qualified for the holiday pay provided by the August 21, 1954 Agreement and were paid a pro rata day's pay accordingly, but they were not allowed to work on the holidays mentioned in the claims and were not paid in lieu of working.

Therefore the issue here is "Does the payment of a day's pay at pro rata rate under the provisions of Article 11 August 21, 1954 National Agreement, preclude payment of the additional compensation called for in Article 3?"

Article 3 reads as follows:

"ARTICLE 3 GUARANTEE

"Regular assigned employes shall 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 eight (8) hours as per location, except on assigned rest days on positions which it is necessary to be regularly represented for eight hours a day, seven days a week, or on rest days and holidays on other positions.

"This rule shall not apply in cases of reduction in forces nor where traffic is interrupted or suspended by conditions not within the control of the carrier."

The carrier sought below to bring itself within the exception set out in the last paragraph, but here, apparently it abandoned that as a defense and is embracing our recent Award 8539 as being controlling in this dispute.

It will be noted that Award 8539 adopted Awards 22 and 51 of the New York Central Board of Adjustment No. 137. Award No. 51 is the later in point of time and we repeat here the quote therefrom as appears in Award 8539:

" `The Holiday Rule was to secure holidays without work for the employes but to pay time and one-half when they were required to work the holiday. The Holiday Rule did not change any of the other rules in the agreement, and employes on positions blanked on holidays are only rightfully entitled to straight time pay on such occasions."'

Here it will be noted "The Holiday rule did not change any of the other rules of the agreement" followed by the assumption that presumes to decide the very issue there and here, with no attempted explanation of the obvious non-sequitor.

Article II referred to supra reads as follows:

"ARTICLE 11-HOLIDAYS

"Section 1. Effective May 1, 1954, each regularly assigned hourly and daily rated employe shall receive eight hours' pay at the pro rata hourly rate of the position to which assigned for each of the following enumerated holidays when such holiday falls on a workday of the workweek of the individual employe:

"Note: This rule does not disturb agreements or practices now in effect under which any other day is substituted or observed in place of any of the above-enurner ated holidays."

Both sides concede Rule III deals with compensation, and not work, and since it has not been changed in any way and, the fact, that under it the carrier has to pay a premium under it, does not per se, render it nugatory. We just do not believe it was the intention of the parties to strike from Article 3, the Guarantee rule, the words "except on assigned rest days on positions which it is necessary to be regularly represented for eight hours a day, seven days a week, or on rest days and holidays on other positions". If it was the intention, there must be more proof of it than we have in this docket.

We believe claimants have made out their case and both claims should be sustained, the Carrier violated the Agreement in denying payment.

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

That Carrier violated the agreement.

AWARD