and was paid in lieu therefor under the provisions thereof. Here it is certain that if Andrus had not been granted a vacation he would have received pay for only nine days. In the interpretations (See page 58 of the Agreement and Interpretations thereon) by Referee Morse we find the following statement:

'The parties should never forget that the primary purpose of the vacation agreement was to provide vacations to those employes who qualified under the vacation plan set up by the agreement. Any attempt on the part of either of the Carriers or the labor organizations to gain collateral advantages out of the agreement is in violation of the spirit and intent of the agreement.'

"Here, in view of our announced conclusions, it is apparent that Andrus is attempting to gain collateral advantages growing out of the agreement, in violation of its spirit and intent."

Summarizing, Carrier maintains it did not violate the provisions of its basic Agreement with the Organization when it rehired Mr. Gurganus, a furloughed fireman, and subsequently assigned him to the position of a clerk-crew dispatcher to fill temporary vacancies created by regular incumbents laying off for one reason or another. Upon being rehired Mr. Gurganus assumed the status of a new employe, and as such was subject to the provisions of the basic Agreement as a clerk-crew dispatcher and not as a fireman.

Accordingly, Carrier requests Organization's claim herein be denied in their entirety.

All data and arguments herein contained have been presented to the Organization in conference and/or correspondence.

(Exhibits not reproduced.)

OPINION OF BOARD: The parties agree that the date of June 1, 1955 specified for Claimant Jebsen should be corrected to June 21, 1955.

The Carrier hired J. W. Gurganus in a fireman position on June 19, 1953. On September 14, 1953 he was furloughed from that position, which is outside the coverage of the subject agreement between the Carrier and the Clerks' Organization. On June 1, 1954 the Carrier hired Gurganus as an extra clerk-crew dispatcher at Blue Island, Illinois. He Worked in that capacity on various dates thereafter and his name was placed on the January 1, 1955 seniority roster of clerical employes in the Motive Power Department. On April 20, 1955 the Carrier terminated Gurganus after he had been cited by the Clerks for having failed to comply with the terms of the Union Shop Agreement between the subject parties. It is agreed that he had failed to become a member of the Organization within 60 calendar days of his employment as a clerk and after 30 days of such compensated service, that following notice from the Carrier concerning

the citation for non-compliance he did not avail himself of the right to a hearing on the matter, and that his employment as a clerk was properly terminated on April 20, 1955.

On April 30, 1955 the Carrier re-employed Gurganus as an extra-clerkcrew dispatcher to fill a one day vacancy and on the subsequent (corrected) claim dates through June 28, 1955, he also served in this capacity to cover assignments of employes who were absent or on vacation. On the last day he worked as an extra clerk-crew dispatcher Gurganus was recalled to service as a fireman.

It is the Organization's contention that the Carrier's re-employment of Gurganus as a clerk following his termination on April 20, 1955 was in violation of the parties' basic agreement and their Union Shop Agreement. The Carrier responds that it was entitled to re-employ Gurganus on April 30, 1955 just as it has the right to rehire any other individual who has been previously dismissed for disciplinary or any other reason, and that upon his rehire Gurganus again acquired the protection afforded by the Clerks' agreement.

Section 1 of the parties' Union Shop Agreement provides that all employes of the Carrier subject to the rules and working conditions agreements between the parties "shall, as a condition of their continued employment subject to such agreements, become members of the organization party to this agreement representing their craft or class within sixty calendar days of the date they first perform compensated service as such employees . . ."-subject to other provisos not pertinent here. Since Gurganus did not comply with the prescribed condition, he was barred from "continued employment" subject to the Carrier's basic agreement with the Clerks. Yet ten days after he was terminated from employment covered by this agreement the Carrier re-employed him for assignments within the jurisdiction of the agreement.

We do not think the ten day interval here involved permits the Carrier to validly contend it did not continue to employ Gurganus as an extra clerk. Undoubtedly, there were gaps of equal length in his compensated service before his termination on April 20, 1955, since he was used only as an extra man. The fact that he lost his seniority at the time of his termination, and thus was hired on April 30, 1955 as a new employe, has no bearing on this case. The governing language of the Union Shop Agreement speaks of continued employment, not continued seniority.

We are of the opinion and find that the Carrier violated the parties' Union Shop Agreement in the subject instance. The claim will be sustained with the correction of the June 1, 1955 date for Claimant Jebsen as indicated above.

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 the Carrier violated the Agreement.

AWARD