first work day after the holiday, is necessarily compensation as a regularly assigned, hourly or daily rated employe. Monthly rated foremen and compensation for such service are factors that are not provided for in, and are foreign to, Sections 1 and 3, and if a monthly rated status and compensation therefor is involved in any manner, such as on the last work day before the holiday or the holiday itself, it cannot be considered as crediting the employe with service and compensation toward accrual of holiday pay as a regularly assigned hourly or daily rated employe under those Sections 1 and 3 of the Agreement. The employes are attempting to have included, through an award of your Board, a provision in the National Agreement of August 21, 1954 to permit monthly rated factors to apply to hourly or daily rated employes, and no such provision is now contained in Sections 1 and 3 of the mentioned Agreement, and your Board is not empowered to write such additional provision.

In recognition of all factors involved, particularly since the claimant was holding a vacation vacancy on a monthly rated foreman position on the date of the claim and would have worked on Friday (had service been required on the holiday) as that holiday fell on one of the normal work days of the foreman's position and was one of the work days of vacation accrued by and granted to the foreman, it is clearly evident that the claimant was not a regularly assigned hourly rated employe on the holiday or on the day before the holiday, nor did he receive compensation as a regularly assigned, hourly rated section laborer on the day before the holiday. It is, therefore, readily evident that the claim is without merit and the Carrier respectfully requests that it be denied.

All basic data contained herein has been made known to the Employes.

OPINION OF BOARD: The Claimant was assigned as an hourly rated section laborer at Murdo, South Dakota. From June 16, through July 4, 1958 he was assigned to relieve the vacationing foreman during the above period. On Monday, July 7, 1958 he returned to his regular assigned position as section laborer. The Claimant was monthly rated before and on the holiday .and hourly rated Monday, July 7, 1958 after the holiday. The Carrier refused to pay him straight time pay for the holiday.

The question presented is: Did the Claimant as a monthly rated em ploye before, after and on the holiday meet the requirements of Article II, Sections 1 and 3 of the agreement and become entitled to straight time pay for the holiday?

The Carrier contends that to be compensated for holidays an employe must be a regularly assigned and hourly rated before and after the holiday. The Claimant on July 1, 2, and 3 received a monthly increment for the holiday of July 4th as a monthly rated employe provided by Section 2, of Article 11 of the agreement of August 21, 1954. Thus to receive in addition straight time pay for the holiday would be dual pay. The Claimant did not become an hourly rated employe until Monday, July 7, 1958. Furthermore, the Claimant was a monthly rated employe on the holiday and the workday prior to the holiday and did not comply with the requirements of Article II, Section 1, and 3, of the current agreement.

The Claimant contends that his regular assignment was that of an hourly rated employe and he was only a temporary foreman during the vacation period. In addition as a monthly rated employe he would receive an increment

of approximately one-half hour as holiday pay on the 4th of July for the 1, 2 and 3 of July which he worked. Thus there was no dual compensation.

The facts and circumstances herein reveal that although the complainant. did work on the days preceding and on the holiday as a foreman and subsequent to the holiday as an hourly rated employe he complied with Article II,. Section 1 and 3 of the agreement as decided in Awards 11551 and 11471.. However, in this dispute the Claimant here has received some compensation for the holiday as a monthly rated employe and in Award 11551 the referee distinguished the facts there from Award 2485 and allowed the claim on this. basis that holiday compensation had been received in Award 2485 and not in: 11551.

I am in agreement with this reasoning and am of the opinion that where dual compensation is received the claim for holiday pay should be disallowed. However, from the facts in this dispute the dual pay received was insignificant as the complainant only received a prorated amount of his monthly rate for 3 days in July 1958, which the complainant contends amounted to one-half hour.. This fact was not controverted by the Carrier.

In the language of Award 11551 it states:

"The purpose of the August 21, 1954 Agreement was to make it possible for the employees to maintain their normal take home pay in weeks during which a holiday occurs .. . . "

This was not accomplished when the Claimant was paid one-half hour for his holiday pay. In Award No. 10081 it is stated on page 7, that "Monthly rated employees receive their holiday pay over a period of 12 months. They receive holiday pay each and every month whether or not a holiday occurs in that month." This statement implies it was the purpose of the parties to apply the holiday pay to monthly rated employes on an annual basis, not for short term, vacation relief work. In addition the purpose of Article II, Section 1 implies that it was designed for the regularly assigned hourly rate employe rather than a vacation relief foreman, while Article II, Section 2 (a) applies to regularly monthly rated employes.

It is further difficult to understand why the parties would arrive at an agreement whereby an employe temporarily promoted, both for the benefit of the Carrier and the Claimant, could be penalized, by failing to receive a full weeks pay.

I am of the opinion that the Claimant complied with Article II, Section 3 of the current Agreement and further did not receive dual pay for the holiday of July 4, 1958.

Thus the Claimant should be allowed 8 hours pay for the July 4, holiday less any compensation earned as a monthly rated man on July 1, 2, and 3.

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 Agreement was violated.

AWARD