STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that-
(a) Carrier violated the rules of the schedule for Clerks effective April 1, 1943, when it refused to pay Myrtle B. Wells, Record Clerk, Office Superintendent Car Service Kansas City, Missouri, for twelve (12) days time lost account personal illness, during period June 22, 1946 to September 4, 1946, and
(b) That the Carrier shall now be required to make such payment to Myrtle B. Wells by reason of such bona fide illness.
EMPLOYES' STATEMENT OF FACTS: Myrtle B. Wells reported sick on June 22, 1946. On June 26, 1946, she was ordered to enter St. Mary's Hospital by Dr. W. P. Miller, Chief Surgeon of the KCS Employes' Hospital Association, and was under his personal care. She was released from the hospital on July 23, 1946 and was confined to her home under Dr. Miller's orders until September 4, 1946.
The Carrier failed and refused to pay her wages for twelve working days as provided in rules of the Agreement.
These rules shall govern the hours of service and working conditions of all that class of clerical, office, station and storehouse employes of The Kansas City Southern Railway Company of which the Brotherhood of Railway and Steamship Clerks. Freight Handlers, Express and Station Employes is the duly authorized representative, grouped as follows:
(1) Overtime to amount of $73.56 was worked by other clerks in keeping up work of Mrs. Wells' job during June, 1946.
(4) During the period July 1 to September 2nd various other employes took their vacations (although some were paid allowances in lieu of vacations not granted due to our inability to relieve them) · however, Mrs. Wells was not qualified to fill these positions (for example-she could not fill stenographer's position), hence absence from those positions had no bearing on her absence nor upon any allowance due or not due her; as her job was filled during that time.
(5) There also were one or two who were absent account illness during the period, but they were paid for time off under sick leave rule. This has no bearing on her absence.
(6) Claim is for 12 days, while General Chairman asked for only 10 days, and sick leave allowance was made to Mrs. Wells on 2 dates subsequent to her return to work on September 4, 1946, making a total of 3 days sick allowance which was paid.
OPINION OF BOARD: Claimant was employed as Record Clerk (Position 23) in the office of the Superintendent of Car Service at Kansas City, Missouri. She was off duty because of sickness from June 22 to September 4, 1946. She claims that she is entitled to paid twelve days' sick leave under the provisions of Rule 51, current Agreement, which provides:
The Carrier contends that the absence of Claimant required the employing of a new employe to perform Claimant's work from July 1st forward. The record shows that a position of Record Clerk-Interchange (Position 53) was added on July 1st. The need for this position arose prior to Claimant's illness and as a result of a previous reduction of force and the taking of vacations by experienced employes. This being true, it cannot be said that the employment of the occupant of the new position had the effect, of itself, of depriving Claimant of her sick leave pay. Such action had the effect of increasing the normal payroll of the office, it having been bulletined as a permanent position.
The position of Claimant (Position 23) was not rebulletined. It was filled by other employes in the office. This does not preclude a recovery of sick leave pay unless the payroll in the office showed an increase over the amount it would have been if Claimant had been working. It is evident that the payroll was less, which the Carrier accounts for by stating that many employes were on vacation whose positions were not filled. This would, of course, result in a reduction of payroll expense. But it is not a defense. If the Carrier was able to carry on the work of the office without added payroll cost, Claimant is entitled to sick leave as provided in Rule 51. See Awards 399, 1511, 2649, 2981. While it is true that Rule 51 purports to give the Carrier some discretion in the matter of allowing sick leave pay, it does not permit of arbitrary action. There must be a basis in fact for the exercise of any discretion permitted by Rule 51. Award 3580. We think the record strongly indicates that there was no payroll increase in this office during July and August that resulted from the absence of this Claimant on account of sickness. If there was, it would have been a simple matter for the Carrier to have established it.
The record shows that Claimant has been paid for three days' sick leave in the calendar year of 1946. The claim will therefore be sustained for nine days.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively 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