Award No. 13733
Docket No. CL-14681
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Herbert J. Mesigh, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE LONG ISLAND RAIL ROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (G7.-5491) that:
1. The Carrier violated the Clerks' Agreement and the long
established practice and understanding with the monthly rated clerical
employes represented by this Brotherhood, by which all monthly rated
clerical employes who have fifteen years seniority or more are allowed
a specified number of sick days with pay in accordance with their
seniority when it denied Clerk B. Wahlert sick pay for February 10,
11, 12, and 26, 1963, and April 1, 1963.
2. Clerk Wahlert having over fifteen years service who was
unable to work on February 10, 11, 12 and 26, 1963, and April 1, 1963
account of sickness, be paid for the above mentioned days.
EMPLOYES' STATEMENT OF FACTS: For many years prior to and
subsequent to December 1, 1935, when this Brotherhood became the duly
accredited representative of the craft or class of clerical and related employes
on this property, it is a well known fact that there has been a past practice,
custom and understanding in existence whereby the Carrier made no deduction from the wages and salaries of any of the monthly rated clerical employes, having fifteen or more years service, when they were absent from duty
on account of illness. The employes were paid a certain amount of sick days
according to their years of service beyond 15 years. This custom, practice and
understanding has been in effect for longer years than most employes can
remember. The first time this established practice was departed from according to our information was in February, 1962, and a claim was handled to
the highest officer of the Carrier who sustained our request and paid the claim
on June 20, 1962. (See Employes' Exhibit A.)
Furthermore, this Carrier has accepted, admitted, agreed upon and understood that the sick pay allowance was a part of the working conditions of
the employes and equivalent of an agreement rule, when on August 7, 1962,
it sent a letter to the General Chairman advising as follows:
[5341
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549
"* * * It is apparent, therefore, that what this Board is asked
to do is to frame a rule which may apply to situations which may
arise in the future not only with respect to this employe but with
respect to all others similarly situated. It has been repeatedly held
that this Board has no authority to make rules. Its function is interpret them and apply them to the facts of particular cases. * * *"
Our policy with respect to payment of sick wages is the same as the
Pennsylvania Railroad, which we enunciated on Page 3 hereof.
Award No. 12176 of the Third Division National Railroad Adjustment
Board, relative to a dispute arising under the sick pay policy of the Pennsylvania Railroad, provides that the payment of sick wages "shall not confer
any right upon any employe to demand or receive wages during disability."
This Award, of course, supports the Carrier's position in the instant case.
In summarizing, the Carrier desires to reiterate and stress the following
points:
1. There is no rule in the collectively-bargained agreement governing the payment of wages to employes absent account illness.
2. The practice of allowing sick wage payments to its employes
having fifteen or more years of service, has been based on the
merits of each individual case, subject to approval of the Department Head.
3. Award No. 12176, Third Division, National Railroad Adjustment
Board, supports Carrier's position.
4. The Board lacks jurisdiction to consider this controversy since:
(a) It is without power to write a new rule into the agreement between the parties.
(b) The controversy does not fall within the four corners of
the basic Rules and Working Conditions Agreement.
Accordingly, your Honorable Board must dismiss the Employes' claim.
(Exhibits not reproduced.)
OPINION OF BOARD:
Argument presented by the parties' representatives was offered for all four Dockets of CL-14302, CL-14681, CL-14682, and
CL-14873.
It is agreed by the parties that the basic issue in Docket CL-14302 is the
same in CL-14681, 14682, and CL-14873.
The parties to this dispute, their contentions and the rule at issue are
the same as in Award 13732 and is held to be controlling in this docket.
That a violation of the Agreement has not been shown.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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550
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
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 13th day of July 1965.
LABOR MEMBER'S DISSENT TO AWARD 13733,
DOCKET CL-14681
My Dissent to Award 13732, Docket CL-14302, is adopted as my dissent
to Award 13733, Docket CL-14681.
D. E. Watkins
Labor Member
7-29-65