"Rule 17 (d) intends that when an employe is absent by reason of sickness and he is paid under the sick leave agreement (Memorandum Number 22) and there is no position blanked in that office which would cause a decrease in the office payroll expense as a result of the sickness, other employes performing the work of the absent employe will not be paid other than their regular rates regardless of the rate of the position of the absent employs."

Memorandum No. 2 (Sick Leave Agreement) was formerly identified as Memorandum No. 22.

A sustaining award of the claim presented here by the employes would place a new application upon the rule and we submit it is not the function of your Honorable Board to render an award which will have the effect of writing a new rule or changing the prevailing application of an existing rule.

Although the employes contend that Position 450 was blanked, that was not the case for Claimant Roessger remained assigned to Position 50 up to July 31, 1953 and he was paid on that position. It was not blanked. It is true Claimant Roessger performed some work of Position 442 during his assigned hours, which was contemplated by Rule 17-and specifically by the provisions of aragraph (d) of that rule. He received his regular rate of pay for the work performed on Position 450. He also performed some work of Position 442 outside of his assigned hours for which he was paid at the overtime rate based upon the rate of Position 442.

mploye Schlosser was paid his regular daily rate for that 10 day period as was Claimant Roessger. With no assignment blanked, in accordance with the provisions of Rule 17 (d), it was entirely proper that Claimant Roessger receive only the rate of his own position during that 10 day period.

There is no sensible reason why the Carrier should (in addition to paying employe Schlosser his regular daily rate of pay while absent due to illness and then paying at least 28 additional hours overtime to employs Roessger because of employe Schlosser's absence) be required to undergo an additional penalty payroll expense for the difference between the rate of Position 450 and the rate of Position 442, with the rate of the latter position applying on each of the 10 days involved to employe Schlosser.

The question to be resolved in this case is whether or not, under the provisions of Rule 17 (d) (with the provisions of Memorandum No. 2 in mind and with all employes being paid their regular daily rates of pay) the Carrier is.to be subjected to further penalty expense representing the difference between the rate of one position and the higher rate of another position assigned to an employe absent due to illness while the latter employe is paid his regular daily rate of pay. It is the Carrier's position that Rule 17 (d) clearly intends that the Carrier shall not be so subjected to such additional penalty expense and under such circumstances a denial award is in order.

There is no basis for this claim and we respectfully request that it be denied.

All data contained herein has been presented to the employes.

(Exhibits not reproduced.)

OPINION OF BOARD: The rule involved in this dispute is 17 (d) which states:

"(d) The provisions of this rule do not apply to employes performing work of an employe absent by reason of sickness when sick leave payment is allowed and when none of the regular assignments in the office, in which is located the assignment of the employe

absent account of sickness, is blanked by the Carrier." (Emphasis ours.)

Employes state:

"Under the provisions of Rule 17(d) there are two conditions which the Carrier must meet before it is privileged to deny the higher rate to an employe assigned to a higher rated position. Those conditions being:

1) That sick leave payment is allowed to the employe absent account of sickness.

2) That none of the regular assignments in the office in which is located the assignment of the employe absent account of sickness is blanked by the Carrier.

"In the instant case the Carrier met the first condition but failed to meet the second. Therefore, the Employes contend that Rule 17(d) would not be applicable ut that Rule 17(a) (which calls for the higher rate of pay and upon which Claimant relies) would be controlling." (Parenthesis supplied.)

Further quoting from employes:

"Apparently what actually occurred was that Employe Roess· ger was instructed to perform the essential duties of both Position No. 450 and Position No. 442 and as he was unable to perform the necessary work of the two positions during his eight hour tour of duty, he was required to work 2 hours overtime each day. That Employe Roessger performed the essential duties of )loth positions cannot be denied." * * *

Employes further contend that:

"Roessger, by assuming and performing the major duties and responsibilities of Position No. 442, actually filled that position and therefore, his regular position No. 450, was unoccupied, vacant and unfilled --consequently, blanked. Having filled position No. 442, the Employes contend that Ere p*loye Roessger was entitled to the rate of that position in aCCOTQance with the provisions of rule 17(a)."

"what actually occurred" supra shows that Roessger performed the essential duties of both positions so it cannot be said position No. 450 was "unoccupied, vacant and unfilled-consequently blanked."

In Award 7255, a sustaining Award we said:

" * * * A position is blanked only when no one works it. This position was not blanked, because it appears that another performed some of the duties of the position although some were deferred, on both of the two rest days in question.

"Since the Carrier elected to fill the position, it should have been worked under the conditions upon which the sick Relief would have worked it." (Emphasis ours.)

That the Carrier did not violate the Agreement.

AWARD