"Claim on behalf of the System Committee of the Brotherhood (GL12810) that:

1. Carrier violated Rule 26 (Holidays) on October 13, 2000, when it

improperly deducted holiday pay, Labor Day, September 4, 2000,

from Clerk Carolyn Larder's wages, Position 0681-117, AAR

Accounts Clerk, located on District 15.

2. Carrier will now be required to compensate Clerk Larder, ID 782408 for the holiday, eight (8) hours pay at the straight time rate of her position ($152.97) in addition to any other earnings and entitlements."

Parties to said dispute were given due notice of hearing thereon.

Thursday August 31, 2000 Sick

Friday September 1, 2000 Vacation

Saturday September 2, 2000 Rest Day

Sunday September 3, 2000 Rest Day

Monday September 4, 2000 Holiday

Tuesday September 5, 2000 Worked

"Carolyn used a vacation day prior to the holiday to protect her holiday and worked the day after . . . please explain how she still lost the holiday??? Thanks, Marie."

Payroll replied the same day:

"C. Ladner . . . was approved and paid 8 Hol 9-4-00 on ppe 9-15-00, however, she was not due holiday pay because she was paid 8 SIC 8-3100 which was her qualifying day before the holiday. She was on Vac 91-00. Vacation is a neutral day and does not qualify her for Holiday . . . ."

Rule 26 - HOLIDAYS provides:

"(d) 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 work days 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

The Carrier here asserts that Thursday, August 31, is the critical day for determining entitlement to holiday pay in this instance because vacation days are not "qualifying days" but rather are "neutral." Manager Administration L. Bafford's February 2, 2001 letter denying the claim somewhat confusingly states that position. In our judgment, it contains both a factual error and insists upon a two-step review that is not referenced in the language of the Agreement, stating in part:

". . . when applying Rule 26, a vacation day is considered a neutral day and therefore does qualify an employee for holiday pay. In accordance with Rule 26 an employee must perform compensated service on the assigned work day immediately preceding and immediately following a holiday in order to qualify for holiday pay. Since Clerk Larder marked off sick on the assigned work day immediately preceding the Labor Day holiday, and did not perform compensated service on that day, she is not entitled to holiday pay for Labor Day. . . :' (Emphasis added)

Had the Claimant in fact marked off sick on the workday immediately preceding the holiday, as asserted, the case would be tidier. Or had she been in the middle of a vacation when the holiday fell, as the Carrier argues, her entitlement may have been controlled by the parties' "mutually accepted interpretation of Rule 26 (d)" addressing such factual patterns. That too would simplify matters. But she was not marked off

sick and not in the middle of a vacation on the workday immediately preceding the holiday.

To be entitled to holiday pay under Rule 26, compensation must be "credited to" the work days immediately preceding and following the holiday. Compensation was unquestionably credited to September 5, the day following Labor Day. Was compensation "credited to" the day preceding the holiday? For the reasons that follow, the Board finds that it was.

First, notwithstanding the Carrier Member's otherwise well-developed Memorandum to the contrary, the Third Division authority supplied for our review appears to not support Carrier's position, or at least not with much consistency. Indeed, the predominant view of those cases addressing analogous facts under similar Rules sustains the Organization's position.' Additionally, some of the authority cited by the Carrier is from the Second Division. There is fairly obvious tension between Second and Third Division precedent on the general issues, which does little to impose order on the chaos.Z

Secondly, the Organization points out that an express exception is found in Rule 26 of the Agreement applicable to Sick Leave and Compassionate Leave, excluding both from consideration as compensation for purpose of qualifying for holiday pay:

"Compensation paid under sick-leave rules or practices will not be considered as compensation for purposes of this rule." 3

' The Carrier relies heavily on Third Division Award 23831. That case involves other parties and implicates a very different fact pattern featuring a Signalman on call for the two days preceding a holiday and hospitalized on the day following. The issue presented was whether the Claimant's status "on call" changed a rest day to a work day for purposes of applying a different Rule. Accordingly, it is inapposite. It further cites Second Division Award 10112. The Organization relies upon, inter alia. Third Division Award 26305 (". . . had the Parties intended other exceptions (beyond bereavement pay and sick leave pay] they would have, being skilled negotiators, stated them."); and Public Law Board No. 5336 Award 3 (Plain language of Agreement and settled Second Division authority trump past practice.)

Z Second Division authority, based on our review of the cases provided, is apparently fairly uniform in holding that a vacation day is not a workday for purposes of determining holiday pay eligibility. We have made no effort to examine the differences, if any, between the applicable rules etc.

'Article Hl- Holidays, Section 2, December 28, 1967 Agreement and June 24, 1968 Agreement. Cited in Award 71, Public Law Board No. 2263 (Eischen) (1987) (Consolidated Rail Corporation & TCIU).

Noting this exception, and recognizing the "two distinct lines of precedent on this issue followed by the Second and Third Divisions of the NRAB, neither of which is per se unreasonable or fallacious," Public Law Board No. 2263, Award 71 (1987) found for the claimant under a virtually identical set of facts. Relying on the "long line of consistent decisions by the NRAB Third Division" offered by the TCIU, the Board stated in part:

"The holiday rule language . . . provides an express exclusion for qualifying days of compensation paid under sick leave rules or practices but contains no other exceptions and under accepted principles in contract construction no other exceptions should be inferred." (Citations omitted.)

We find that analysis persuasive. For the reasons stated above, and in deference to what appears to be prevailing Third Division precedent, we conclude that the claim must be sustained.

AWARD