(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

1. Carrier violated the Schedule Agreement when it failed to properly compensate Telegrapher R. V. Stewart, Seattle, Washington, holiday pay for December 24 and 25, 1976, and January 1, 1977.

 2. Carrier shall now be required to compensate R. V. Stewart eight (8) hours pro rata pay for December 24 and 25, 1976, and January 1, 1977, at the rate of his regular Telegrapher assignment at South Portal, Seattle, Washington.

 OPINION OF BOARD: Claimant is regularly assigned to the third shift
 Telegrapher position at South Portal, Seattle,
 Washington. Claimant also performs work as an Extra Train Dispatcher.
 Commencing on December 12, 1976 and continuing through January 5, 1977
 claimant performed work as a train dispatcher and was compensated under
 the Dispatchers' Agreement during that time.

 At issue in this case is whether claimant is entitled to apply the Holiday pay provisions of the Telegraphers' Agreement while working as a Train Dispatcher. Holiday pay for Train Dispatchers is included in their regular monthly pay. Payment for Holidays for Telegraphers is covered by Appendix G to the Clerks' Agreement which in pertinent part reads as follows:










"(*) NOTE. In the Dominion of Canada the following holidays will be observed in lieu of the employe's birthday and those specified above; New Year's Day, Good Friday, Empire Day, Dominion Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Eve, Christmas Day and Boxing Day.









                      Docket Number CL-22205


    "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 following his rest days 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.


    Except as provided in the following paragraph, all others for whom holiday pay is provided in Section 1 hereof shall qualify for such holiday pay if on the day preceding and the day following the holiday they satisfy one or the other of the following conditions:


            (i) Compensation for service paid by the carrier is credited; or


        (ii) Such employee is available for service.


        NOTE: 'Available' as used in subsection (ii) above is interpreted by the parties to mean that an employee is available unless he lays off of his own accord or does not respond to a call, pursuant to the rules of the applicable agreement, for service.


    For the purposes of Section 1, other than regularly assigned employees who are relieving regularly assigned employees on the same assignment on both the work day preceding and the work day following the holiday will have the workweek of the incumbent of the assigned position and will be subject to the same qualifying requirements respecting service and availability on the work days preceding and following the holiday as apply to the employee whom he is relieving.


        Compensation paid under sick-leave rules or practices will not be considered as compensation for purposes of this rule."


We have been furnished with conflicting authorities on this point in support of the positions of both sides. While we are able to distinguish those awards which hold that service in another craft qualifies as work immediately preceding or following a holiday, we are faced with awards such
                      Award Number 23172 Page 4

                      Docket Number CL-22205


as 22086 which states that brief service on a monthly rated position surrounding a holiday does not deprive one of the holiday pay benefits of the Clerks' Agreement. Award No. 44 of Public Law Board 1366 takes the other view that the claimant has no holiday standing under the Telegraphers' Agreement while working as a dispatcher.

 The claimant retained his seniority rights under the BRAG Agreement while working as a dispatcher. When he returned to service as a telegrapher he could avail himself of the benefits of that agreement. In the meanwhile however, the claimant's employment including rate of pay is governed by the Dispatchers' Agreement. We fail to see the logic in permitting claimant to select certain provisions of the Clerks' Agreement for application while he is performing dispatcher service. When claimant performed service as a dispatcher during a period that included holidays he was required to look to the agreement of the craft under which he was working to determine which benefits would accrue to him by virtue of his service on that day. In the instant case the Clerks' Agreement was not operative as regards the claimant's service on the days in question. Should an employe provide dispatcher service over a period of time which encompasses no holidays he would benefit by virtue of holiday pay being included in the monthly rate. Should an employe provide dispatcher service for a short period of time which encompasses a holiday he may receive less total compensation than he would have received working as a telegrapher over the same period of time. Surely this points to the possibility of an inequity. The inequities which may arise in these types of situations are the proper subject for negotiation. We are not able to selectively apply certain provisions of the BRAC Agreement as requested herein. We find the line of cases holding that an employe cannot be compensated under two agreements to encompass the better view.

        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

        That the Agreement was not violated.

                      Award Number 23172 Page 5

                      Docket Number CL-22205

                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: ~i~494,01~

        ExEcutive -Secretary


Dated at Chicago, Illinois, this 18th day of February 1981.

LABOR MEMBER'S DISSENT

TO

AWARD N0. 23172, DOCKET CL-22205

(Referee Franden)


Award 23172 is in error. The majority ignored a long line of decisions wherein compensation credited to a Telegrapher on the appropriate "qualifying days for example, as a Train Dispatcher, as in this case, qualified the Claimant for "holiday pay" under agreements such as the one set forth at pages one through three of this Award 23172. See for example, Third Division Awards:

              11317 (Moore)

              11551 (Webster)

              14501 (Dorsey)

              15685 (Dorsey)

              16457 (Mesigh)

              16596 (McGovern)

              18261 (Dolnick)

              18953 (Ritter)

              19715 (Rubenstein)

              20585 (Lieberman)

              20725 (Lieberman)

              21848 (Mead)

              22086 (Marx)

              22198 (Marx)

and others cited therein. Several awards of Special Boards of
 Adjustment have held that Holiday Pay Agreements, such as here,
 involved, were carefully drawn so as not to disqualify employes,
 such as Claimant herein, when compensation credited to him during
 the "qualifying period" was earned as a result of Claimant's dual seniority status. See for example, Awards 34 and 38 of Public Law Board No. 713 (Dolnick), Award 9 of Public Law Board No. 352 (Weston), Award 37 of Special Board of Adjustment No. 122 (Gilden) and Award 82 of Special Board of Adjustment No. 192 (Robertson).
 While the majority herein confesses to being unable to see the logic in treating Claimant the same as in the earlier cited awards, a close look at the original and revised proposal by the majority appears to reveal the majority's own biased "logic." In the Referee's proposed award, after making erroneous statements about holiday pay for Train Dispa in their regular monthly pay and then writing:
 "That is the way the Agreements are written." The Referee, after re-argument, caused the statement quoted immediately above to be expunged from the proposed award while the equally erroneous statements that holiday pay for Train Dispatchers etc., were left intact. Unable to "get around" prior awards wherein the one and only exception as to "compensation paid him by the Carrier" was res at page three of this Award No. 23172, to excluding that compensation paid under sick-leave rules or decided to simply remove Claimant and his employment from any coverage of the Holiday Pay Agreement. The Referee added the language:

                                    - 2 - Labor Member's Dissent to Award 23172

      "Surely this points to the possibility of an inequity. The inequities which may arise in these types of situations are the proper subject for negotiations.


"We find the line of cases holding that an employe cannot be compensated under two agreements to encompass the better view." In other words, by holding to the original erroneous decision, the majority attempted by this Award No. 23172 to add another exception to the agreement rules shown as Section 1(a) through 3(ii), pages one through three of Award No. 23172. In doing so, the Carrier party to this dispute reaps the benefits while the Referee sees that the "inequities" are visitec on the Claimant. Award 23172 is totally in error, and I vigorously dissent thereto.

                            J. C letcher~or Member


- 3 - Labor Member's Dissent
              to Award 23172