going remodeling and redecorating, and the Claimant was alone, dressed in work clothes eating his lunch, and they concluded he was working and that if he was able to do that work he was able to perform his regular tasks for the Carrier. This interview lasted about six minutes after which the Carrier officials departed. The weight of the evidence indicates that there was no remodeling, as the term is used in the usual building sense, but that a small room divider was being erected by two carpenters employed for that purpose. Furthermore the redecorating had been completed five months previously. A fair analysis of the evidence indicates that the clothing worn by the Claimant was not the usual work clothing worn by building mechanics but was more in the nature of fatigue or casual clothing which is almost the accepted standard of dress in Southern California. Moreover, the Carrier officials did not see the Claimant doing any work of any nature, and the Carrier produced no witnesses who could testify that they did actually see the Claimant working. The Claimant denies doing any work whatsoever and there is nothing in the record refuting this denial. This Board has held many times that an employe cannot be found guilty of an offense on evidence that is wholly speculative.

The Carrier asserted that the Claimant's absence from service was in violation of Rule 810 of the Rules and Regulations of the Transportation Department, and Item 1 of Section 8, Reissue of Notices, Los Angeles Division, dated January 1, 1957. Although the Carrier did not state specifically and precisely the part or parts of Rule 801 that were violated by the Claimant, the record discloses that the Carrier's case is predicated largely on the alleged violation of the first two sentences, namely: (1) "Employes must not engage in other businesses without permission of the proper officer." and (2) "They must not absent themselves from their employment without proper authority.

The other portions of Rule 810 are not relevant to this dispute. It is our opinion that (1) supra, has not been violated by the Claimant as the conduct of Carrier officials in using the services of Claimant's real estate business constitutes a waiver of the requirement and amounts to tacit permission to operate the business. With respect to (2) supra, the Claimant reported his illness prior to his absence in the usual and customary manner so did not violate that part of the rule. The Carrier also relies on Section 8, Part 1 of the Re-issue of Notices which provides, in substance, methods for granting permission to he off duty. This notice enumerates the classifications to which it is directed. It does not include Engine Crew Dispatchers. It is our opinion that this rule and regulation is not applicable to the instant dispute for at least two primary reasons, which are: (a) the notice was not issued to Engine Crew Dispatchers and (b) it is designed to apply to employes who desire advance permission for planned or foreseen absences. It cannot be construed to cover employes who are off duty due to unexpected illness.

It seems to us that the relationship between the parties concerning such matters as absence because of illness and leaves of absence are adequately covered in Rule 2R (b) and Rule 39 (a) of the collectively bargained agreement then in force. Rule 26 (h) provides, in substance, that an employe who has absented himself without proper leave shall forfeit his seniority, except in the case of illness or other physical disability. The Claimant submitted a statement from a doctor certifying that he had been under his care because of flu and had been off work since October 14, 1957, and released him to return to work as of October 28, 1957. The Carrier made no effort to impeach this statement by the use of competent evidence, so we must accept it as true. If the Carrier was doubtful as to the illness of the Claimant it could have had its doctor examine him any of the days he was absent, but it did not do so

and chose to rely on the reports from laymen based on an interview lasting about six minutes. We do not believe that these lay conclusions contradict a report by a medical doctor that a patient had been under his care because of the flu.

Rule 39 (a), the pertinent part applicable herein, provides the method for granting of leave of absence without loss of seniority. This provision includes an exception in case of illness or disability. It is our opinion that the unambiguous language in this rule clearly provides for an almost unlimited period of absence in case of sickness or physical disability. Actually the rule seems to be concerned with the method to follow when an employe foresees in advance the necessity for an extended leave of absence without pay and without loss of seniority rights. On the basis of the whole we find that the Carrier has failed to prove that the Claimant had violated any applicable rules, and therefore a sustaining order is required.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, find and holds:

That oral hearing was waived by the parties;

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

That the Agreement was violated.

AWARD