For the foregoing reasons the Carrier respectfully submits that if your Honorable Board does not dismiss the claim on the valid grounds previously indicated herein, it should deny the claim in its entirety.

III. Under The Railway Labor Act, The National Railroad Adjustment Board, Third Division, Is Required To Give Effect To The Said Agreement And To Decide The Present Dispute In Accordance Therewith.

It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreements and to decide the present dispute in accordance therewith.

The Railway Labor Act in Section 3 First, subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out "of grievances or out of the interpretations or application of Agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreements between the parties thereto. To grant the claim of the Employes in this case would require the Board to disregard the Agreements between the parties and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.

CONCLUSION

The Carrier has established conclusively that no rule or agreed-upon understanding has been entered into by the parties hereto that would require payment of the compensation here claimed; that its application of a policy in these matters over the years has not resulted in an established practice having any binding or obligatory effect; and that even if such a practice somehow were deemed to exist, the Claimant has not and cannot establish thereunder his entitlement to the wage allowances requested. It follows, therefore, that no violation of the Clerks' Rules Agreement or any other obligation binding upon the Carrier has occurred, and your Honorable Board is respectfully requested to deny the Employes' claim in its entirety.

The Carrier demands strict proof by competent evidence of all facts relied upon by the Claimant, with the right to test the same by cross-examination, the right to produce competent evidence in its own behalf at a proper trial of this matter, and the establishment of a record of all of the same.

All data contained herein have been presented to the employe involved or to his duly authorized representative.

(Exhibits not reproduced.)

OPINION OF BOARD: Does a sick pay practice which is long continued, which Carrier commenced as a "gratuity" which during its history is changed from time to time without prior consultation with the Organization and which is twice the subject of unsuccessful proposals to make it the subject of a rule nevertheless because of its longevity have the force and effect of a rule such as to give rise to a valid claim for breach of the agreement when it is not followed.

We hold it does not.

In 1956 the Claimant was stricken with a serious illness which subsequently forced his retirement from the Carrier's service at age sixty-six. At that time the Claimant had been continuously in the service of the Carrier from age eighteen or a period of forty eight years. The Claimant for a long period before this claim arose had never availed himself of the sick time available to him under the practice in force. After granting fifteen days with pay as sick leave, the Carrier refused to allow any further time, although the Claimant's illness continued for a lengthy period thereafter.

Pointing to a Caner practice of long standing wherein by a graduated scale based on years of service sick leave was made available to employes up to a maximum of four months for employes with over forty years service as its authority, the Organization on behalf of the Claimant asserted that when the Carrier by memorandum dated June 28, 1938, imposed a provision "those over 65 years of age not be allowed more than 2 weeks (sick pay) without authority of the General Manager" it violated the agreement.

With this position we cannot agree. Our opinion is based upon the following facts culled from the record. In 1922, a uniform policy for sick allowances was promulgated by Carrier which established the forerunner of the graduated scale referred to above. It in part provided ". . . the foregoing suggestions . . . shall not confer any right upon any employe to demand or receive wages during disability . ." The memorandum of 1938 contained a similar provision. The specifics implementing this policy incorporated in the 1922 policy statement were unilaterally amended from time to time without prior consultation with the Organization.

Finally in 1941 for a second time, a proposal by the Organization to reduce the prior practice to a rule was rejected and the proposal was withdrawn.

FINDINGS: The Third Division of the Adjustment Board, 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

That the Agreement was not violated.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary