sick leave pay for July 23, 24 and 25, 1958, and the claim is wholly without merit and agreement support. Carrier respectfully requests the Third Division to deny the claim.

r r r r r

All data submitted in support of the Carrier's position have been heretofore submitted to the Employes or their duly accredited representatives.

The Carriers request ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.

Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.

For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim and grant said Railroad Companies, and each of them, such other relief to which they may be entitled.

(Exhibits not Reproduced)

OPIMON OF BOARD: Claimant occupied position No. 1477, Receiving Clerk at the St. Louis Freight Station. He was absent from work because of illness on July 21 to 25, 1958 inclusive. July 21 and 22 were part of his vacation period for which time he was paid. He teas not paid for July 23, 24 and 25, 1958. Claimant was an employe in Group 1.

During Claimant's absence, W. L. Bird, a part-time employe in Group 3, and an extra in Group 1, was assigned to fill Claimant's position. Mr. Bird was a "Picker" in Group 3 and was paid the rate for freight house laborer. During the three days from July 23 to 25, 1958 inclusive, Mr. Bird was paid the higher rate of Receiving Clerk. No one worked the laborer's position in Group 3 on those three days.

Claimant asks for three days sick leave compensation based upon "the difference or saving accrued- to the Carrier in payroll expense resulting from Malter's absence and what it would have otherwise been, i:e:, three 8 hour days, or 24 hours at $2.12 per hour, amount $50.88."

On the merits of the claim, Employes contend that Carrier violated Addendum No. 3 dated December 1, 1951, which reads as follows:

Deductions will be made for days in excess of those stipulated in the three periods.

The employing officer must be satisfied that the sickness is bona fide, and that no additional expense to the carrier involved. Satisfactory evidence as to sickness in the form of a certificate from a reputable physician, preferably a company physician, will be required in case of doubt."

Since Mr. Bird's position in Group 3 was blanked for the three days, Employes argue, the claim should be sustained because Bird worked Claimant's position with "no additional expense to the carrier involved."

Carrier contends (1) that Addendum No. 3 has been interpreted on the property to mean that absence because of illness will not be deducted from an employe's pay when the employe who is sick "is a Group 1 employe, and his work is kept up by other Group 1 employes without cost to Carrier," (2) that "Carrier is never required to pay sick leave if such pay would result in an additional expense," that the Employes have the burden of proving that there was no additional expense to the Carrier, and (3) that Mr. Bird would in all probability not have worked July 23, 24 and 25.

The Employes have the burden of proving (1) that Claimant was absent because of a "bona fide case of sickness," and (2) that his work was "kept up by other employes without cost to the carrier".

There is no question that Claimant's absence on July 23, 24 and 25 was because of a "bona fide case of sickness". Carrier has never questioned this fact.

Whether or not Claimant's work was "kept up by other employes without cost to carrier" is questionable. Mr. Bird was a part-time employe in Group 3. He was not a regularly assigned employe to any position in Group 3. He worked only at such times as the Carrier needed his services and his seniority entitled him to the position where he was needed. The record shows that "Mr. Bird worked only twelve of the twenty-two working days during the month of July, 1958, i.e., July 1, 2, 3. 5, 12, 15, 16, 17, 18, 29, 30 and 31." He did not work as a "Picker five days prior to the dates of this claim and three days thereafter." There is no presumption that he would have worked as a "Picker" or worked at all on July 23, 24, and 25 had Claimant not been absent because of sickness. Certainly, there is no presumption and no affirmative evidence that the laborer's position of "Picker" was blanked on these three days because Mr. Bird filled Claimant's position. The laborer's position of "Picker" in Group 3 may not have been filled on July 23, 24 and 25 had Claimant worked his position. This is supported by Mr. Bird's work record for July, 1958.

Claimant has presented no evidence to support his contention that Mr. "Bird's Group 3 position was not filled" to the extent that Carrier benefited by the blanking of that position. Lacking this affirmative evidence, we cannot find that Claimant's work was "kept up by other employes without cost to carrier."

Mr. Bird was paid the rate of Claimant's position for the three days in question. This was a cost to the Carrier. In the absence of proof that Carrier otherwise benefited so that Mr. Bird's assignment to Claimant's position did not increase the Carrier's costs, we are obliged to hold that there is no basis for the claim.

That the parties waived oral hearing;

That Carrier did not violate the Agreement.

AWARD