Subject to the qualifying requirements set forth below, effective with the calendar year 1965 each hourly, daily and weekly rated employe shall receive one additional day off with pay, or an additional day's pay, on each such employe's birthday, as hereinafter provided.

(a) For regularly assigned employes, if an employe's birthday falls on a work day of the work week of the individual employe he shall be given the day off with pay; if an employe's birthday falls on

and 26, however you cannot withhold pay for June 27th, which is birthday (holiday). We are requesting this pay.

We ask that you give this your attention and trust that you will arrange to imburse Mr. Lindsay for that day * * *"

Cnoference between the Manager of Personnel and General Chairman was held on August 29, 1969 at which time the request for pay on June 27th to Mr. Lindsay- was discussed and the decision of the Manager of Personnel rendered under date of September 24, 1969, copy of which is attached as "C&IM EXHIBIT-A", reading in pertinent part as follows:

"(FACTS)-Holiday pay to monthly rated employes is pro-rated to all the working days in a year. Monthly compensation is calculated on the basis of working days credited to a section foreman for days worked or days available for work, including holidays falling on a work day. No work day credit is given to a section foreman who is not available, including working days preceding or following a holiday as well as the holiday work day. Consequently, claimant Lindsay was not credited with a work day on June 25, 26 or 27, 1969 as he was laying-off due to illness on Wednesday, the 25th and did not report for work until Monday, the 30th. Mr. Lindsay was paid 10/21 for the first half of June 1969 and 8/21 for the last half of June 1969.

(DISPOSITION) - Claim declined as being without merit under the availability and pay provisions for monthly rated employes in the current HMWE agreement, particularly Appendix No. 4 (as revised by Appendices No. 6 and 8), and the long established existing local practices thereunder."

(Exhibits not ours).

OPINION Or BOARD: The question to be resolved in this dispute is:

Should a holiday that falls on a normal work day be treated as a work day when computing the daily pay of a monthly rated employe?

Carrier defends this claim on Awards 10081 (Begley) and 12324 (Seff) which are contrary to the overwhelming majority of awards which hold that "holidays are not considered working days" and that "holidays are considered as unassigned days." Se Awards 5668, 70,33, 7136, 7294, 11552, 12292 and 16252. Also Rule 38, Appendix No. 1 excludes seven (7) holidays and all rest days in the calendar year when computing monthly rates of pay. Also, Awards 10681, 10682, 1bSi6, 11041, 11552, 1222"), 13026, 11072, -X1977, and 17255, this Board has held that Carrier may not consider a holiday as a work day in the basic month. Carrier contends that it has in the past always considered a holiday a ~vork day in computing the daily pay of a monthly rated employe. However, this Board has held in Award 18345 (Dolnick), "A mistaken rate application, no matter for what period of time, does not supersede a fixed agreed to contract. Past practice may not change or alter a clear and unambiguous contract provision."

The awards cited by the Organization have been carefully studied and are found not to be in palpable error, and are, therefore, found to be controlling in this dispute.

Carrier has argued that the claim submitted to this Board has been changed from that claim submitted on the property. The claim on the property and the claim before this Board have been compared. This comparison reveals the claim before this Board is substantially the same as the claim on the property; that Carrier has not been misled in Claimant's basic contention; and that the claim before this Board has not been enlarged. Therefore, Carrier's request for dismissal is overruled. See Awards 14246 (Dorsey), 18373 (Dorsey) and 13229 (Hall).

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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