(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (The Chesapeake and Ohio Railway Company ( (Chesapeake District)

(a) The Carrier violated the Agreement when it did not pay Claimant Clarence Horsley for October 23, 1969, at the rate. of $24.15 per day.

 (b) The Carrier shall pay Claimant Clarence Horsley one days pay at $24.15, the rate of Laborer's position C-42 which he would have worked had he not been sick.

 OPINION OF BOARD: At the time of the matter complained of, Claimant Clarence
 Horsley held seniority in Group 3 Stores Department Roster,
 Russell, Kentucky Seniority District. Because of force reduction, on September
 22, 1969, he no longer stood for a position with five days guaranteed work.
 Claimant requested under Rule 18 (d) that he be used as a cut-off employee to
 fill temporary vacancies in keeping with his seniority.

 On October 23, 1969 Claimant was ill and unable to accept the call to work Laborer Position C-42 with respect to which he had preference. He filed a claim for sick-time and the claim was declined.

 The Organization contends that Claimant should be compensated under Rule 60 and Carrier contends that the provisions of Rule 60 do not provide for sick pay benefits to cut-off employes.

 The question at issue is whether cut-off employes are entitled to sick pay benefits under Rule 60 or whether the Rule protects only regularly assigned employes. The text of Rule 60 is set forth below:





"2. The plan provided for herein contemplates that on any given day for which an employe is entitled to benefits under both the Railroad Unemployment Insurance Act and this Rule that the Carrier shall supplement the benefits provided under the Act and received by the employe to the extent of the difference in benefits provided under the Act and that provided in this. Rule (but only for days on which the employe would have had a right to work with a maximum of five (5) days supplemental benefits in any calendar week).

 "3. Beginning on the first day an employe is absent from work due to personal illness (not including pregnancy) and extending in each instance for the length the provisions of the subsections of this Section 3, each such employe shall be entitled to a sickness allowance for such days of illness on which he otherwise would have worked (subject to the provisions of Section 2 hereof) in accordance with the schedule of benefit.-, set forth in .-lie following subsections:









"4. The supervising, officer of the Carrier will supply employes entitled to file for sickness benefits under the Railroad Unemployment Insurance Act the necessary papers for filing claim and supplying the Carrier such information as it may need in connection therewith in order to facilitate the collection of money due the employe from the Retirement Board and the making of payment by the Carrier of any supplemental benefits due the employe under the provisions of this Rule.


        "In the event an employe forfeits sickness benefits under the Railroad Unemployment Insurance Act for any day of sickness because of his failure to file for such benefits, he shall only be entitled to any Carrier paid supplemental benefit due for that day, except where the failure to file was unavoidable.


        "5. It will be optional with the Carrier to fill or not fill the position of an employe who is absent account of personal illness, including the first five (5) days of an employe with less than five (5) years service who is absent account of personal illness, under the provisions of this rule. If the Carrier elects to fill the vacancy the rules of the Agreement applicable thereto will apply. The right of the Carrier to use other employes on duty to assist in performing duties of the position of the employe absent under this Rule is recognized provided, however, the absentee's work performed by 'other employes' is performed within the assigned hours of the 'other employes'.


        "6. The cmploying officer must be satisfied that the illness is bona fide. Satisfactory evidence in the form of a certificate from a reputable doctor will be required in case of doubt. The Local Chairman and the General Chairman will cooperate with the Railway to the fullest extent to see that no undue advantage is taken of this rule.


        "7. Before applying the foregoing provisions the Carrier shall determine, under the principles stated in this paragraph, whether sick leave compensation or supplemental allowances are to be paid. Any e.7,ploye who is not entitled to Railroad Unemployment Insurance Act sicimess benefits by virtue of insufficient earnings in a base year or where period of illness is not of sufficient len3th to satisfy a waiting period will be paid compensation, and all such amounts paid will be reported as compensated sick leave. In all other instances supplemental allowances will be paid and they will not be reported as compensation.


        "8. For the time necessary to attend funeral and handle matters related thereto, in the event of death of a spouse, child, parent, parent-in-law, brother or sister of an employe who has been in service one year or more, unused 'sick leave' days which have accrued to him under this rule (not exceeding three consecutive work days unless, in individual agreement is otherwise reached) may be used, which will be deducted from the time which he would otherwise have available for time lost account personal illness."


Carrier argues that in the past it has not been the practice to grant other than regular assigned employes sick pay benefits under the application of the provisions of Rule 60 and that revised Rule 60 in no manner alters the situation.
                        Award :umber 19633 Page 4

                        Docket Fumber CL-19390


      The Organization concedes that it was not the practice or policy of the Carrier to grant sick leave to cut-off employes before October 1, 1969, under the former policy which states:


            "The policy of the Management is to be liberal in the matter of allowing pay for Group 1 employes, telephone switchboard operators, crew callers, messengers personal illness, except where undue advantage is taken of this policy,"


      However, the Employer say that it is an "Agreement" not "policy" that now controls, referring to the October 1, 1969 Agreement on a non-governmental plan for siclmess allcwances or sickness allowances supplemental to the sickness benefit provisions of the Railroad Unemployment Insur:ulce Act.


      In a previous Award, 19483, the Board sac called upon to decide whether Rule 60 was restricted in its scope to regularly nsaigncd employes or whether it applied to all cut-off employees as well. The "card in that award stated:


            " ..cae find that the intent to cover a cut-off employee is manifest within the confines of Rule 60, itself, and, consequently, we will not enforce a contrar


      We think Award 19483 involving the same Carrier and the same Organization is dispositive of the inst


      In our prior award we brought into focus the references to the words "employee" and "c-ployees" in various paragraphs of Rule 60 as follows:


            "Paragraph 1.: ...The purpose of this plan is to provide sic?ne-_- allowances to employees absent account of illness...


                Paragraph 2: ..(but only for days on which the employee

            would ham-a had a right to work with a maximum of five (5) days

            supplemental benefits in any calendar week).


            Paragraph 3: Beginning on the first day an employee is absent from work due to personal illness ...each such employe shall be entitled to a sickness allowance for such days of

            illness on which he otherwise would have worked "


      It is clear from the foregoing that the parties intended the words "employee" and "crnlcyces" be used in an unqualified manner and the Board has no autlority to rewrite the P,;rcemcnt and limit the meaning of the words "employee" and "employees" by, in eff:ct, addin.- the restriction "regularly assigned" in front of each.


7
                    Award Number 19633 Page 5

                    Docket Number CL-19390


Where the language of an Agreement is plain and unambiguous, we enforce the Agreement as written and we can not alter it to conform to past practice.

 The Board concludes here, as it did in Award 19483 that Rule 60 applies to all employees absent because of illness.

        The claim is therefore sustained.


        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 this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                    A W A R D


        Claim sustained.


        ' NATIONAL RAILROAD ADJUSTMENT BOARD

        By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 27th day of February 1973.

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