BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
"Claiin of If. J. Wadleigh and II. J. Dennison for pay for sick leave under Rule 1,u of (lie Cleric's cuxruit Agreement.-
STATEMENT OF PACTS.-B. J. Wadlvigh, trueker ill the Los Angeles freight station, was absent on account of illness for twelve days, February 10 to 22, 1936. f7. .1. Dennison, trucker, was absent oil account of sickness for six days, February 7 to 13, 1936. No employs was culled or required to work in place of these employes, and no overtime was worked by other employes as a result of the absence from duty of Messrs. Wadleigh and Dennison on the days shown.
There is in evidence an agreement between the parties hearing effective date of April 1, 7935, front which is cited Rule 60, reading:
Both Messrs. Wadleigh quit Dennison have been iii continuous service of the carrier over three years, and their sickness was bona fide.
POSITION OP EMPLOYES.-The right of iin employs to be paid while off sick is based upon two premises antler Itule 60. First, work must be kept up by other employes without cost to the carrier; second, the sickness must be bona fide.
There is no dispute as to tile genuineness of the illness of the claimants. No physician's certificate was requested by the carrier, amt it has not raised such issue as a defense at any time ill the prosecution of this case. That the work was kept up by other employes without cost to the carrier is conclusively proven by the letter of Air. T. H. Wagenbaeh, Assistant Superintendent, to Division Chairman W. J. Rouudtree, auder (late of March 30, 1936, reading in part:
"It is my contention that while no one was employed or called from the extra list to fill Mr. Wadleigh's place, tile nature of the work is such that within the meaning of the Rule the work wax not kept up by other employes without expense to the Company."
Mr. Wagenbach admits iii this letter that no one was employed or called from the extra list to fill Mr. Wadleigh's place, and the same is true with respect to the claim of Mr. Dennison.
The carrier has never at any time in the handling of this dispute offered any evidence that the work was not kept ill) by other employes without expense to the carrier. On the other hand, the organization has contended throughout the case that the regular force only was used while these employes were off; that no one worked in their place and that no overtime was claimed by ally employe as a result of the absence of Wadleigh and Dennison.
POSITION OF CARRHv'R-Mr. Wadleigh, ktourlya:ated (rocker, was absent on account of illness for twelve days, February 10 to 22, 1936, and Mr. Da~tnison, hourly-rated trucker, was absent oil account of ilb,ess for six days, February 7 to 13, 1936. No employe was required to work in the place of these employes, at.(] no overtime was worked by other employes as a result of their absence. On February 10, 1936, in order to meet truck competition between Los Angeles and the Harbor at San Pedro, all first class freight for the Pacific Electric Ratihvaiy and the Southern Pacific Company movh:g between Los Angeles and the docks at Los Angeles Harbor was changed from rail transportation to transportation by truck. Prior to that (late, the Southern Pacific ireigltt between Los Angeles and the Ilarbor was handled by the Pacific Electric in Pacific Electric cars. This freight was handled through the Los Angeles freight station of the Pacific Electric. With the inauguration of track transportation, this S. I'. freight moved direct to and from the S. P. freight station arid the Los Angeles Harbor. As a result of this diversion of business, the following Pacific Electric truckers were laid off; on February 7, 1936, W. A. Cunningham, J. A. O'Neil and T. J. Lyons; oil February 8, 19.86, F. L. Smith. In addition to these lay-oils, William Hernandez was absent oil February 16. It will be noted that this force reduction ocem-red at the same time that Messrs. Wadleigh and Dennison were absent oil account of sick leave. We contend that if the sick leave of Wadleigh and Dennison had not coincided with the (late of these force reductions, it would have been necessary to hty off additional men to equalize the reduction in work due to the substitution of track transportation and consequent diversion of business to the S. P. By tile time Messrs. Wadleigh and Dennison returned, there was a pick up fu business due to improvement in the steamship situation after the close of the maritime strike, as well as a general business pick up, so that it was unnecessary to make any further lay-off to offset the return of those two men.
It is, therefore, clearly evident that the sick leave of `1'adleigh and Dennison served in lien of a force reduction, find if they are to be paid for this time off, if would constitute a direct and additional expense to the carrier, and as there v; a , a decrease fit work, it would be improper to claim that their work had been kept up by the. remaining employer. In consequence, we cannot be satisfied that no additional expense to the carrier was involved, as is contemplated in the second paragraph of Rule 60, and which specifies that-"the employing ofliccr must be satisfied that no additional expense to the Carrier is involved."
These two cases prove that in the application of the sick leave rule, the evidonce of "no nthlitbonal expense" does not depend upon the employment of additional men to work fit the place of such absentees, or that the men remaining in service be worked longer hours as any marked fluctuation in tile amount of freight to be handled by hourly-rated truckers would necessitate an adjustment of either the number of truckers employed or the number of hours worked in order to maintain an economic ratio.
OPINION OF BOARD.-Both parties to this dispute are in agreement upon the fact that no employes were required to work in the place of either B. J. Wadleigh or H. J. Dennison during the periods in question, that overtime was not worked by Other emllnyes as n result of the absence of fh<- clahnant,, and that their sickness was bona fide.
FINDINGS.-This dispute was submitted to this DiviAot of the Ad,jnstment Board by the Brotherhood ex parte, and both the petitioner and respondent carrier have jointly certified that hearing thereon is not desired.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the carrier and the employes involved in this dispute are rcspsdvely 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 complainant employes have been In continuous service of the carrier in excess of three years; their sickness was bonafide; and their work was kept up by other ontployes and Do additional expenses to the carrier was involved as a result of their absence oil the days in question.