Pnotostatic copies of exchange of correspondence between Dr. deRouville, Acting Chief Surgeon for the Railroad, and Dr. Sheldon are attached, marked Exhibit "C".

The Employes claim that this employe forfeited his seniority under Rule 4 of the Clerks' Agreement effective January 1, 1941, which reads as follows:

"RULE 4, CLERKS' AGREEMENT, EFFECTIVE JANUARY 1, 1941

Employes voluntarily leaving the service will forfeit all seniority and if they re-enter, be considered new employes."

The Employes further contend that Mr. Basque was in the employ of the Champlain Silk Mills at Whitehall, N. Y., from October 1, 1946, to March 21, 1947. Upon being interviewed, this employe claims that inasmuch as there was no railroad position with duties sufficiently light for him to perform, he applied for the job with the Champlain Spinners of Whitehall. He was accepted and was employed by that concern from October 1, 1946, to March 21, 1947. Mr. A. R. Hoffman, Employment Manager of Champlain Spinners, advised that Mr. Basque's duties consisted of weighing small boxes of yarn and recording weights on reports, which duties are considered light work.

It is the Carrier's position that this employe was properly carried on leave of absence account illness due to injuries received in military service, which is supported by statements of his doctors,'and that he did not forfeit his seniority as claimed by the employes under Rule 4 of the Agreement.

(Exhibits not reproduced.)

OPINION OF BOARD: This is a claim of the organization that the name of Charles A. Basque be removed from the Clerks' Roster and that Homer K. Martin be compensated for all wage loss on account of the fact that he was displaced by Basque, also that all others who suffered loss by displacement because of the Carrier permitting Basque to exercise seniority over Martin be compensated.

In determining the questions involved here it becomes necessary to give consideration to the following rules of the Agreement:

Rule 4. Employes voluntarily leaving the service will forfeit all seniority and if they re-enter, be considered new employes."

"Rule 19. (a) Except as provided in Rule 45 (e), employes who have occupied a position within the scope of this Agreement for one year or more, may, upon request, be granted leave of absence. Not more than ninety (90) days' leave shall be granted in a twelve-month period, starting with the first day off duty, except upon agreement between the Management and the General Chairman.

(b) Employes failing to return upon expiration of leave of absence will forfeit their seniority unless an extension has been obtained and provided that such failure to return to service has not been brought about by sickness or other unavoidable cause.

(c) This Rule does not apply to absence account personal illness.

(d) ' · *"

"Rule 20. An employe returning after a leave of absence or when relieved from temporary assignment, official or excepted position, may return to former position providing it has not been abolished or senior employe has not exercised displacement rights thereon, or may upon return or within five (5) days thereafter, exercise seniority rights on any position bulletined during such

absence. In the event employe's former position has been abolished or senior employe has exercised displacement rights thereon, the returning employe will have the privilege of exercising seniority rights over junior employes if such rights are asserted within five (5) days after his return. Employes displaced by his return will be affected in the same manner.

This Rule will not apply to regular or extra employes who are granted leave of absence to enter lines of endeavor beyond the scope of this Agreement unless exception is agreed to by Management and the General Chairman."

"Rule 47. Effort will be made to furnish employment (suited to their capacity) to employes who have become physically unable to continue in service in their present positions."

Basque was employed as an extra clerk in July, 1942 and in Decemher of the same year he was granted leave of absence for military service. On December 31 ,1945, he returned to service as a yard clerk at Whitehall and the following day was assigned as freight checker at Glens Falls. He did not work the position on account of physical disability. On February 16 1946, he was granted leave of absence on account of illness. Four days later he submitted a doctor's certificate and continued on leave on account of illness. On August 16, 1946 he again submitted a doctor's certificate and was continued on leave of absence. The record does not disclose any contract between Basque and the Carrier or the Organization thereafter until April 9, 1947. In the meantime from October 1, 1946 until March 21, 1947 he was employed at light work as a porter at a silk mill On March 21, 1947 he was furloughed from that position. He was allowed by the Carrier to exercise seniority on the position in question on the basis of his employment before his war service and his employment thereafter pursuant to his assignment as yard clerk at Whitehall.

The Organization does not question the propriety of the assignment at Whitehall but insists that thereafter he lost or surrendered his seniority rights.

As to Rule 4, it can hardly be said that he lost his seniority by voluntarily leaving the service. Everything that was done was inconsistent with any such purpose or intention. When he left after return from military service it was on leave of absence on account of illness. His return in 1947 indicated an intention to return after disability had been removed.

Rule 19 is the general leave of absence rule and if Basque under the circumstances disclosed shall be held to have been amenable to its provisions it would be necessary to say that he lost his seniority. The terms though of the rule itself make it inapplicable to him. It will be noted that it has no application to absence on account of personal illness. Basque's was such an absence.

Rule 20 is the one which protects the seniority rights of an employe when he returns to service after having been on leave of absence. This rule preserves the rights of all employes returning after leave of absence except those who are granted leave to enter lines of endeavor beyond the scope of the Agreement without agreement between Management and the General Chairman that seniority rights shall be preserved.

This rule can have no application since the record does not disclose that Basque was granted leave of absence to enter lines of endeavor beyond the scope of the Agreement. It discloses that his leave of absence was on account of illness.

There is no showing of violation or evasion of Rule 47, hence it may not be said that on this basis the claim has been sustained.

An analysis of all of the pertinent rules and an application thereto of the facts does not indicate that the Agreement has been violated.

That the claim has not been sustained.

AWARD