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AWARD NO. 25 CASE NO. 25

 LAW BOARD NO. 4402
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO )
 DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT OF CLAIM





December 24 and 25, 1986, at his sectionman's rate of pay because
 of the violation referred to in Part (i) above.
 OPINION OF BOARD
 Claimant, an hourly rated sectionman, was furloughed at the close of his tour of duty on December, 8, 1986 and remained in an other than regularly assigned status beyond the 1986 Christmas holiday. Christmas Eve and Christmas Day are designated holidays in the National Holiday Provisions. During the 30 days preceding Christmas 1986, Claimant actually worked nine days and was also compensated for Thanksgiving Day and the day after Thanksgiving Day - days that are also designated as holidays in the Agreement.


Claimant's request for holiday pay for Christmas Eve and Christmas Day was denied by the Carrier for reasons explained in its April 23. 1987 letter:


The question in this case is whether Claimant's being compensated for the two Thanksgiving holidays on November 27 and 28, 1986 can be considered as "compensation for service paid him by the carrier" so as to give Claimant 11 days within the 30 calendar days immediately preceding Christmas thereby entitling Claimant to holiday pay for the 1986 Christmas holidays. '








In Third Division Award 14816, also relied upon by the Organization (a vacation pay dispute rather than a holiday pay question), it was held:

 1 In its Submission at 3, the Carrier states that a "mistake in counting went uncorrected during the
 handling of the claim on the property" and argues that in any event, Claimant would only have 10
 qualifying days as opposed to 11 even if the Organization's interpretation in this matter is found to be
 correct. That dispute of fact cannot be raised for the first time before this Board.

                                · Page 3


          Nothing in the Agreement ... requires that the Claimant actually renders service or works during the 30 calendar days period immediately prior to the holiday. All Claimant has to prove in this instance is that she had compensation for service paid her by Carrier credited to 11 or more days of the 30 calendar days immediately prior to the holiday in question.

See also,-Third Division Awards 16983, 14674 supporting the Organization's position.
      The Carrier relies upon the rationale set forth in Second Division Award 9908:


          The sole issue before this Board is whether holiday pay is "compensation for service" under Article Il, Section 1(c) of the Non-Operating National Holiday Agreement. It is clear that such pay is not compensation for service and that the claim must fail. This is so for a number of reasons.


          First, the language of that provision is clear and unambiguous. It requires that Claimants must have been compensatedforservice on eleven of the 30 calendar days immediately preceding the New Year's Holiday. (emphasis supplied) The term "service" can mean but one thing - actual work. Here, Claimants did not work on December 24 and 25, 1979. Thus, Claimants were not compensated "for service" on those two days.


          Second, awards cited by Claimants are not relevant here. Those awards provide that vacation days are recognized as days for which "compensation for service" is granted. However, vacation days are earned as a result of the performance of work - a specified number of days in each of a number of years. Thus, vacation days are compensation for service except that the payment for such service is deferred until the employe takes his vacation. Thus, a vacation day cannot be equated to a holiday, on which no work, actual or deferred, has been performed .


          ... Accordingly, since Claimants did not provide "service" on eleven or more of the thirty calendar days immediately preceding January 1, 1980, they are not entitled to holiday pay for that day.

We agree with the line of authority discussed in Third Division Awards 20725, 14816, 14674 and 16983. First, had the parties intended that an employee must "work" on a day to receive credit for that day in terms of computing the holiday pay entitlement, these - sophisticated negotiators could have used that word rather than "compensation for service".
          ' PLB 4402, Award 25

                                      C. R: Kelley

    . Page 4


The word "work". cannot be read into the relevant language as was done in Second Division Award 9908. . .
 Second, in Section 3, of the Agreement the parties specifically provided that "Compensation paid under, sick-leave rules or practices will not be considered as compensation for purposes of this rule". Given that the parties specifically addressed this exception, under standard rules of contract construction the failure to further except days - where holiday pay was previously paid leads to the construction that such further exception was not intended.
 Finally, we do not find that the Carrier's distinction between vacation pay and holiday pay is valid so as to require a denial of the claim. In order to receive vacation an employee must earn that benefit under the specifiedI,parameters of the Agreement. By the same token, in order to receive holiday pay, the employee must similarly qualify for that benefit by meeting the specific terms of the negotiated Agreement. Given that similarity and further given the strong line of authority supporting the Organization's position and for the other reasons discussed above, in this matter we find the Carrier's argument unpersuasive to change the result.
      We must therefore sustain the claim.


AWARD
                                      _-.


      Claim sustained.


                      Edwin H. Bonn

                    Neutral Member


    EVE Kallinen P. . Swanson

    Carrier Member Organization Member


Chicago, Illinois _ -
 April 15, 1990'