16.5 The Carrier may require satisfactory evidence in the form of a letter or certificate from a physician confirming the employees' sickness if employees are off sick for more than 3 consecutive working days."

Carrier contends that it properly counted Claimant's contractual sick days against him. Carrier maintains that the reasons for Claimant's absence were irrelevant. Carrier cites numerous awards which it argues support its position.

There are numerous awards which hold that a carrier may discipline employees for excessive absenteeism, even though the absences may be for legitimate reasons, such as illness. Most of these awards, however, do not indicate that the days off were contractually provided for sick days. Two awards cited by Carrier, Fourth Division Award No. 4985 and S.B.A. 910, Award No. 32, merit further discussion.

In Fourth Division Award No. 4985, the Board considered a claim that the carrier had unjustly disqualified the claimant from his supervisory position due to excessive absenteeism. The Board denied the claim, observing that the claimant missed more than 28 days per year in sickness from 1990 to 1992 and missed 13.8 days in 1989 before he earned any sick leave.

In SBA No. 910, Award No. 32, the Board stated:

"After due study of the record . . . the Board rejects the Organization contention that in determining the question of excessive absenteeism, the Carrier is precluded from taking into account absences which occur beyond the scope of the time limits rule of the applicable Agreement, or which have been made the subject of prior discipline.

Although the Board recognizes that some Employees have difficulty in understanding that these types of absences, as well as excused absences, may be taken into account by Carrier's assessment of whether an Employee's overall attendance is satisfactory, the Board observes that there is no question about the Carrier's right to insist that each Employee shall maintain a reasonably satisfactory attendance record and that the Carrier is entitled to separate from employment those Employees who cannot meet this requirement. For example, an Employee being off with permission for a limited period, or being off under sick pay, means that the

Employee is entitled to be absent due to these particular circumstances; however, the existence of these permissive types of absences does not mean that the Carrier must be blind to these particular absences in determining whether the Employee's overall record is good enough to warrant his being retained in service . . . ."

Thus, in SBA 910, Award No. 32, the Board's comments concerning contractual sick days appear to be dicta, used as an example to explain the Board's ultimate holding that Carrier could consider the claimant's overall record of absenteeism, even though some of the absences predated the contractual time limits and were the subject of prior discipline. Furthermore, in both SBA 910, Award No. 32 and Fourth Division Award 4895, contractual sick days were part of a record of absenteeism that was clearly excessive when measured against an absolute standard of reasonableness. Indeed, in SBA 910, Award No. 32, the Board observed that in February, April and May of 1983, the claimant had marked off sick seventeen days, was absent with permission two days, and missed calls or was absent without permission thirty-one days. In other words, the record reflected an employee who almost never came to work, and the majority of whose absenteeism was completely inexcusable. Similarly, in Fourth Division Award 4985, the claimant had accumulated a considerable number of absences before he even earned any contractual sick leave.

Most importantly, in both awards on which Carrier relies, the Claimants' attendance records were judged against an absolute standard of excessiveness. Their absenteeism records were clearly unreasonable and any employee should have been on notice that such absenteeism was excessive and rendered him subject to discipline. In the instant case, however, Carrier makes no argument that Claimant's absenteeism was excessive when measured against an absolute standard of reasonableness. Rather, the sole basis for Carrier's judgment that Claimant's absenteeism was excessive was a comparison to the shop average. Had the shop average been higher, Claimant would not have been charged. Indeed, we note that the shop average in Award 13445 was 29.72 hours. Had Claimant been employed in the shop at issue in Award 13445, presumably he would not have been charged with excessive absenteeism.

Claimant could not have known the shop average at the time he took his contractual sick days. Thus, at the time he exercised a contractual benefit, Claimant had no way of knowing that by so doing he would be jeopardizing his disciplinary record. Carrier argues that the provision for paid sick days did not entitle Claimant to

take those days off, We agree but only to a limited extent -- the provision for paid sick days did not entitle Claimant to take the days off at will or on a whim. However, they did entitle him to days off with pay when he was legitimately ill and disabled from working. Carrier does not challenge the legitimacy of Claimant's claims to have been ill on the days in question.

Given the way Carrier's attendance control policy operates, an employee who takes a contractually entitled sick leave day does so completely at his own risk that, at a later date, Carrier will determine that Claimant's absences exceeded the shop average and will charge the employee with excessive absenteeism. Under these circumstances, we find persuasive those Awards which hold that a Carrier may not penalize an employee for exercising a contractual right and, therefore, may not base a charge of excessive absenteeism on properly used contractual sick days. See, e.g., SBA 1056, Award No. 10; Special Board of Arbitration (CSX and TCU), Case No. 1; SBA 958, Award Nos. 54, 55.

AWARD