(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that;

 (1) The Carrier violated the Agreement when it refused to allow holiday pay to Welder W. S. Williams for Christmas Day, 1971 and for New Year's Day, 1972 (System Time Claim MW-72-1).

 (2) Welder W. S. Williams now be allowed sixteen (16) hours of straight-time pay as holiday pay for the above-mentioned two holidays.

 OPINION OF BOARD: This claim seeks holiday pay for two holidays (Christ
 mas Day 1971 and New Year's Day 1972), which fell within
 the Claimant's vacation period of December 12-31, 1971. The Claimant did not
 perform any compensated service for Carrier on December 10, 1971, the last
 regular work day of Claimant prior to his vacation, and for this reason, the
 Carrier asserts that Claimant did not qualify for holiday pay under the cur
 rent Holiday Agreement.

 The record shows that Claimant, a regularly assigned welder, was credited with eight (8) hours pay on December 10, 1971 for an on-the-job injury; he received compensation for work performed on January 3, 1972, the first regular work day after his vacation.

 The pertinent provisions of the Holiday Agreement are found in Article II of the May 17, 1968 National Agreement, as amended effective January 1, 1968, and read as









        "Section 3. A regularly assigned employee shall qualify for the holiday pay provided in Section 1 hereof if compensation paid him by the carrier is credited to the workdays immediately preceding and following such holiday or if the employee is not assigned to work but is available for service on such days. If the holiday falls on the last day of a regularly assigned employee's workweek, the first workday fol shall be considered the workday immediately following. If the holiday falls on the first workday of his workweek, the last workday of the preceding workweek shall be considered the workday immediately preceding the holiday.


        "Section 7. (a) When any of the seven recognized holidays enumerated in Section 1 of this Articl agreement, or by law or proclamation of the State or Nation, has been sutstituted or is observed in place of any of such holidays, falls during an hourly or daily rated employee's vacation period, he shall, in addition to his vacation compensation, receive the holiday pay provided for therein provided he meets the qualification requirements specified. The holiday for such qualification purposes." (Underlines added)


The qualifying provisions which govern this dispute are set out in the underlined portions of Sections 3 and 7 of Article II. Under these provisions an employee must h pay for a holiday which falls within his vacation period. The parties appear to agree on this general statement of the rile; they also agree that the pertinent days under the ru 1971 and January 3, 1972. The Claimant performed service on January 3, so the Carrier's argument does not bring the compensation paid for this day into question. Consequently, the issue centers on the compensation credited to Claimant for his workday of December 10, 1971.

 In its initial denial of the claim on the property, the Carrier stated .·'_n a February 1, 1972 letter that-

        " W. S. Williams last worked in 1971 on October 25. The fact that he was paid for vacation from December 13 to December 31 does not qualify him for either of the holidays."


However, at a later stage of handling the Carrier admitted that Claimant received pay for December 10, but the Carrier contended in a February 29, 1972 letter that:
                    Award Number 20128 Page 3

                    Docket Number MW-20074


        " , this pay was for an on the job iniury s~=stained ': v :!-_, Willliams, and was not paid for any service compensa':Ari for on the day immediately preceding the vacation as is stipa·.ate3 within the Holiday Agreement."


The issue is thus narrowed to whether compensation rc: au .)n-the-job injury, credited to Claimant's workday of December 10, qualified Claimant for the two claimed ways of holiday pay; or, whether such comperisatvn ;,,ould not be treated as compensation for purposes of the holiday pay rule, as Carrier :.ontends, because such compensation was not paid for services performed. We believe the plain language of the holiday pay rule resolves this issue in Claimant's favor, and that the compensation credited on December 10, 1971 qualified him for the claimed holiday pay. More specifically, the only compensation excluded from th note ~:c Section 3, This note reads as follows:

        "Compensati.on paid under sickleave rules or practices will not be considered as compensation for the purposes of this rul^,"


C=mnpensation for an on-the-job injury does not come within the PUr71eW Of this not-:e, 1rd wi do 7io'_ Tina any language elsewhere in the rule which might ,.once._;ab_y be rea_' as ,:x~aucizg such compensation .`rim the quaVtication ;,t^visione of the rule. Moreover, in commenting on the ·dentical aickleave e:cceptior in Award 15467 (Lynch), this Board stated:

        '?t ?..^, an accepted practice in interpreting rules of a collecti·re agreement that where the parties, as here, c:.early rake an exception and only one exception (compensation paid under sick leave rules), no oth


'or ether Awards which harmonize with this co®ent on the sickleave exception, see Awards 14501 (Dorsey), 14816 (Dugan), and 18261 (Dolnick).

 In conclusion we note that the Awards cited by the Carrier are not aprcpos to the instant dispute. In Awards 11642 (Dorsey) and 11672 (Rinehart), the Claimants did not have compensation credited to their workdays immediately following the c.oliday. In the Award of Special Board of Adjustment No. 765 (Cluster`, the Claimant did not work due to sickness on the day immediately preceding his vacation, No sickness is involved in this dispute, and the ::laimant rec3ived compensation for service performed on his workday immediPtely following the holid
We find no reason to depart from these Awards and we shall therefore sustain the claim.

.a

                  Award Number 20128 Page 4

                Docket Number MW-20074


        FIIMIWS:'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

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTIXNT BOARD

                            By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 31st day of January 1974.

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