holiday pay, reads as follows:

" RULE 14 - PAID HOLIDAYS

(a) Subject to the qualifying requirements applicable to regularly assigned employees contained in paragraph (b) hereof, each regularly assigned employee shall receive eight (8) hours pay at the straight time rate of the position to which assigned for each of the holidays enumerated in Rule 13.

Subject to the applicable qualifying requirements in paragraph (b) hereof, other than regularly assigned employees shall be eligible for the paid holidays for pay in lieu thereof, provided (1) compensation for service paid him by the Company is credited to eleven (11) or more of the thirty (30) days immediately preceding the holiday and (2) he has had a seniority date for at least sixty (60) days or has sixty (60) days of continuous active service preceding the holiday beginning with the first day of compensated service, provided employment was not terminated prior to the holiday by resignation, for cause, retirement death, non-compliance with the union shop agreement, or disapproval of application for employment.

(b) A regularly assigned employee shall qualify for the holiday pay provided in paragraph (a) hereof if compensation paid him by the Company is credited to the workdays immediately preceding and following such holiday. If the holiday falls on the last day of a regularly assigned employee's workweek, the first workday following the rest days shall be considered the workday immediately following the holiday. 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.

All others for whom holiday pay is provided in paragraph (a) 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 Company is credited; or

(if) Such employee is available for service.

Note: 'Available' as used in subsection (ii) above is interpreted 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.

19129 ROMAN WAY

GAITHERSBURG,

MARYLAND 29979

(ao1) 9n-s9BD

PLB No. 3781 I Award No. 135- Cases Nos. 135, 195, 196, 197 & 215

his vacation compensation, receive the holiday pay provided for in paragraph (a) of this Rule provided he meets the qualification requirements specified. The 'workdays' and 'days' immediately preceding and following the vacation period shall be considered the 'workdays' and 'days' preceding and following the holiday for such qualification purposes. An employee's vacation period will not be extended by reason of any of the eleven (11) recognized holidays, or the day observed.

(d) Special qualifying provision for employees qualifying for both the Christmas Eve and Christmas Day holiday:

An employee who meets all other qualifying requirements will qualify for holiday pay for both Christmas Eve and Christmas Day if on the 'workday' or the 'day; as the case may be, immediately preceding the Christmas Eve holiday he fulfills the qualifying requirements applicable to the 'workday' or the 'day' before the holiday and on the 'workday' or the 'day; as the case may be, immediately following the Christmas Day holiday he fulfills the qualifying requirements applicable to the 'workday' or the 'day' after the holiday.

An employee who does not qualify for holiday pay for both Christmas Eve and Christmas Day may qualify for holiday pay for either Christmas Eve or Christmas Day under the provisions applicable to holidays generally.

(e) Under no circumstances will an employee be allowed more than one (1) overtime payment for service performed by him on a holiday which is also a work day, a rest day and/or a vacation day."

The Organization's argument is that the Carrier recalled the Claimants from furlough and placed them in positions that were not the positions of other employees; thus, the Claimants were not filling positions which were temporarily vacant because the in cumbents were off for vacation or sickness. They were each placed on a position, respecting which, they became the regular employee thereof by bid and award, until such status was changed by a contractually permitted event such as abolishment of the posi-

79129 ROMAN WAY

GARHERSBURG,

MARYLAND 29979

lao1) 9rr-M

PLB No. 3781 J Award No. 135- Cases Nos. 135, 195, 196, 197 & 215

of the Claimants remained in service in some capacity throughout the work season. The Organization's argument concludes that, in consequence of these considerations, once the Claimants were recalled from furlough they became regularly assigned employees as contemplated by Rule 14 and as such are entitled to the holiday pay herein claimed. In support of this argument, the Organization cites this extract from Third Division Award 27753 (03-02-89):

"The Board has carefully reviewed the precedent awards and arguments of the parties. Based on that review, we conclude that Carrier is not correct when it asserts that the term 'regularly assigned employee' means 'an employee who owns an advertised position, having obtained his position either through bidding or displacement rights. The better seasoned awards within this Division have taken a broader view, concluding that employees assigned to and identified with a specific position for indefinite duration all within the meaning of a 'regularly assigned employee' even though the position they occupy is not bulletined."

The Carrier's countering argument is that the Claimants were not regularly assigned employees on the work day immediately before and the work day immediately after the holiday in question, because there was no way of knowing at that time, that any Claimant would become the qualified senior bidder on the positions to which recalled; and because the Agreement contains no provision which changes an employee's status to "regularly assigned" retroactively, so as to cover a holiday, due to such employee being awarded a position subsequent to the holiday. The Carrier further submits that

19129 ROMAN WAY

GAITHERSBURG,

MARYLAND 20979

L3ot) 9n-5999

PLB No. 3781 / Award No. 135- Cases Nos. 135, 195, 196, 197 & 215

iately preceding the holiday, which would have met the criteria in Rule 14, paragraph (a) for holiday pay for "other than regularly assigned employees."

The Organization's suggested construction of Rule 14 plainly does not fit the language of the rule and, therefore, the claim will be denied.

The Organization's argument appears to be based, at least in part, on the omission from Rule 14 of a definition of the term "regularly assigned employees". The lack of such definition may present a problem in some circumstances; however, that is not so in respect to the circumstances of record in this case, because the phrase "other than regularly assigned employees", Rule 14 (a) covers all employees except those regularly assigned. The "other than regularly assigned" category of employees qualifies for holiday pay under Rule 14 by working eleven (11) of the thirty (30) days preceding the holiday and by having sixty (60) days of seniority prior to the holiday. Regularly assigned employees are recognized in the Railroad Industry by several indicia, chief among them being the award of a position pursuant to job bulletin; this category of employee qualifies for holiday pay by working the day before and the day after the holiday.

The fact that the parties structured these criteria into Rule 14 leave no doubt that the Rule 14 text covers the categories of employees that were intended to be covered by the parties and in a manner that was agreeable to the parties. Furthermore, the text provides no basis for an implied third category of employee, i.e. a quasi regularly assigned employee, that comes into existence as a result of a ruling in an arbitration

PLB No. 3781 / Award No. 135- Cases Nos. 135, 195, 196, 197 & 215

would have the effect of interpreting the Agreement as authorizing a changed status of the Claimant's employee status, retroactively, to commence before the claimed holiday, because they became the incumbents of the positions to which recalled, subsequent to the holiday. However, the concept of retroactivity must be rejected because the Agreement provisions before the Board contain no method or authority whereby an employee's status could be changed retroactively in the manner suggested by the Organization. Accordingly, inasmuch as the Agreement provides no authority for retroactivity in the confronting circumstances, and inasmuch as the Board has no independent substantive authority, it necessarily follows that the Board has no power to issue a ruling that provides retroactivity where authority for same does not arise from the contract.

In view of the foregoing, and based on the record as a whole, the claim will be denied for lack of record support.

Fred Blackwell