Even though no reason had ever been given by any Carrier officer as to why they doubted the illness of the claimant, the Brotherhood in a sincere effort to resolve the instant dispute, secured and submitted to the Carrier druggists' statements (Employes' Exhibit "C") substantiating the filling of two prescriptions on the date of the employe's illness, agreeing to accept Carrier's offer of settlement contained in their letter of February 3, 1965, with the understanding that the payment of this claim would be without prejudice to the position of either party. However, the Carrier capriciously retracted its proposal of settlement, as evidenced by its letter of March 4, 1965. (Employes' Exhibit "D").

In view of the fact that the Brotherhood had at no time given the slightest indication that it would accept the Carrier's offer on other than a non-precedent basis, the Carrier's action cannot be construed as being conducive to good labor relations, but to the contrary, it demonstrates perfidiousness and a complete lack of integrity on the part of the Carrier. Certainly, the Brotherhood accepted the Carrier's offer of settlement in good faith, only to be rebuked when it failed to give the Carrier full discretionary power for further violations of a similar nature.

Your particular attention is directed to the first paragraph of Mr. Verd's letter of March 4, 1965 reading as follows:

"This acknowledges receipt of your letter dated February 17, 1965 concerning Carrier Case LC-58-64, your Organization's Case J-1339 (J. W. Roberts) which included two (2) statements indicating that prescriptions were filled on March 7, 1964, but not to whom the medicine was specifically prescribed for."

Before being able to ascertain what the Carrer meant by the above quoted paragraph in light of the druggists' statements (Employes' Exhibit "C"), Carrier immediately under date of March 5, 1965 filed notice of intent to file an ex parte submission of this dispute with your Honorable Board.

It is the Employes' position that Carrier's action in denying claimant pay for '.March 7, 1964 was arbitrary and capricious - that the language of Rule 56 contemplates a reasonable application and a certificate from a reputable physician would only be required in case of doubt. As Carrier has invoked doubt for its benefit, it is a matter of defense which the Carrier must plead and prove. See Third Division Awards 8148, 5457, 5136 and 4538. Thus, the burden of proof is on the Carrier.

On the basis the Carrier has failed to meet this burden of proof, and, further, acted arbitrarily and capriciously when claimant was denied compensation for March 7, 1964, the Employes respectfully request a sustaining award.

(Exhibits not reproduced.)

OPINION OF BOARD: This is an appeal to this Board by the Carrier which involves the interpretation of Rule 56 of the agreement arising out of a dispute between this Carrier and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and station Employes concerning a claim filed in behalf of Clerk James W. Roberts as set forth in the Statement of Claim.

The pertinent portions of Rule 56 with which we are concerned here are, as follows:

"RULE 56

SICK LEAVE

'" x " a clerk, who has been in continuous service as such one

year or more, will be allowed compensation for time absent account bona fide sickness on the following basis:

· i k +

Supervising officer must be satisfied that the sickness is bona fide, and that no additional expense is incurred by the Railway Company. 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" (Emphasis ours.)

The facts, substantially are, as follows: The Claimant marked off sick from his assignment on Saturday, March 7, 1964. Under date of March 24, 1964, he submitted a Claim for eight hours compensation for the time absent on account of his alleged sickness on March 7, 1964, a workday of his workweek. On March 25, 1964, he received a declination of his claim from his immediate supervisor, the Agent, which contained the following language:

"I am not satisfied the sickness referred to in your claim was bona fide. In view of my doubt in this case, you are herewith directed to furnish me with satisfactory evidence as to your sickness in the form of a certificate from a reputable physician. Upon receipt of such certificate, sick pay will be allowed for March 7, 1964, on Position GT 409.

Your claim for sick pay for March 7, 1964, as presented, is respectfully declined."

This claim was progressed successively to Carrier's highest designated officer's level, the Vice President of Personnel, who on September 21, 1964, declined the claim on the ground that Claimant had failed to furnish a "certificate from a reputable physician" as requested: On September 29, 1964 the General Chairman requested a conference which was held on October 16, 1964, and the Vice-President of Personnel reaffirmed his final declination of September 21, 1964. Up to this time the Claimant had furnished no doctor's certificate as requested. On February 2, 1965, another conference was held and it wasn't until this time that Claimant offered any explanation as to why he had not furnished a doctor's certificate as provided for in Rule 56 (c) of the Agreement and after his claim had received its final handling at the Carrier's highest designated officer's level designated under the Railway Labor Act.

It is the contention of the Claimant that the Carrier arbitrarily and capriciously denied Clerk Roberts sick leave pay accruing to him under the Agreement by virtue of his employment; that before a supervisory officer can require the furnishing of a doctor's certificate as provided for in Rule 56, the Carrier has the burden of establishing that he had sufficient grounds to cultivate his suspicion, that the burden is on the Carrier to establish that the alleged sickness of the Claimant was not bona fide.

To the contrary, it is the contention of the Carrier under Rule 56 (c) the reason for Carrier's doubt of a bona fide illness, in any case is personal, and

is purely a Management decision, as contemplated by the provisions of the Agreement; that the employe's recourse is to furnish a "certificate from a reputable physician" that his illness was bona fide and when a verifying certificate is furnished it is sufficient to erase the supervisor's doubt.

It is elemental that in any contract of employment, where the payment of wages is on a day or hours basis, the right to compensate for time lost for absence from work due to illness is not inherent to the contract itself. If it is to be allowed there must be a specific provision for such allowance in the contract. There is such a provision for such compensation in the Agreement with which we are concerned.

What the intention of the parties was with regard to this, as contained in Rule 56 of the Agreement, must be gathered from the language of the Agreement itself. Let us then direct our attention to the Agreement.

Primarily, it provides that under certain employment conditions an employe "will be allowed compensation for time absent account bona fide sickness". Most certainly under this provision, if questioned, the Claimant would have the burden of proving his illness was bona fide.

In Rule 56 (c) it states - "Supervising officer must be satisfied that the sickness is bona fide" and "satisfactory evidence as to sickness in form of certificate from a reputable physician * * * will be required in case of doubt". There is not the slightest equivocation in this language-it is entirely clear. There is nothing in the language of the provision that requires the supervisor to explain to the employe why a doubt exists in his mind. However, the requirement is not burdensome to the employe for if the employe furnishes the certificate in compliance with the Rule, that will overcome the alleged doubt of the supervisory officer and Carrier would be obliged to pay any loss due to sickness.

The Organization, basically, always has the right to question the acts of the Carrier if it has abused its right of decision under any Agreement and has acted arbitrarily and capriciously; however, in such event the one making such a contention would have the burden of proving it by a fair preponderance of evidence.

The Board is convinced that Carrier was acting in the instant case within the rights conferred upon it by Rule 56 in requiring a certificate from a reputable physician and was under no obligation to pay the Claim as Claimant Roberts had at no time up to the time of .the final declination of the Claim on the property furnished any explanation as to why he had failed to furnish a doctor's certificate as requested by his supervising officer and as provided for in the Agreement. We cannot find that the Carrier violated the Agreement. On February 2, 1965, when an explanation was offered, Carrier offered a settlement if certain conditions were complied with.

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;

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 the Agreement was not violated.

AWARD