(Brotherhood of Railway, Airline and Steamship Clerk, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1) Carrier violated the Clerks' Rules Agreement at Chicago, Illinois when it failed to grant employe F. Herner pay for time absent account sickness.

 2) Carrier shall now be required to compensate employe F. Herner for a day's pay in the amount of $35.49 for March 9, 10, 11 and 12, 1971.

 OPINION OF BOARD: This is a sick pay dispute in which claimant received
 pay for the last two of six days of claimed sickness.
 After marking off sick with a fever from Tuesday, March 9 through Wednesday,
 March 17, 1971, claimant requested six days sick pay. (March 9, 10, 11, 12,
 15, and 16, 1971). In his sick pay request he stated that he had made
 "visits to doctors and hospital; also, went to drug store for medications."
 Upon Carrier's request therefor, he submitted a doctor's statement, dated
 March 13, 1971 and reading as follows:

After receiving the above statement the Carrier allowed sick pay for the latter part of the claim (i.e., March 15 and 16, the two work days immediately following claimant's March 13 visit to the doctor's office); however, Carrier disallowed sick pay for the former part of the claim (i. e., March 9, 10, 11, and 12, the four days preceeding the office visit). Carrier's stated reason for the evidence of sickness for the latter part of the claim, but not the former part.

 The Agreement language pertinent to this dispute, found in Memorandum No. 2, September 1, 194


"Regularly assigned clerical employes will be granted pay for time absent account sickness as follows:

 ----------- --



Petitioner contends that the facts of this situation and the foregoing provisions of Memorandum No. 2 do not support Carrier's action. In defense, the Carrier says that, because of doubts about this particular claim, it invoked the paragraph (H) requirement for a doctor's statement and, further, that its action in respect to such statement was not arbitrary or capricious. Thus, th action in respect to the doctor's statement was arbitrary or capricious.

 Petitioner's argument on the issue is that, by accepting the statement as validating the latter part of the claim, the Carrier in effect admitted the validity of the former part. In speaking on this point in its Rebuttal Brief, the Petitioner stated:

Petitioner seems to urge here that the evidence of sickness was essentially the same for both the former and latter part of the claim period and, consequently, if Carrier had reason to pay the latter part, it should have paid the former part also. We appreciate the logic of this contention, for, indeed, the doctor's statement can be read as providing information about claimant's health on March 13, but as providing no information at all about his health during either the former or latter part of the claim period. The logic is not flawless, however, because even though one may validly conclude that the evidenciar no better than the basis for the disallowed part, this conclusion does not

 i i :^is~


provide any evidence for the disallowed part. Carrier was within its rights in challenging the genuiness of the claimant's sickness and the Organization had opportunity to provide evidence, including lay evidence, in response to the challencge. Claimant's sick leave request referred, for example, to a hospital visit, but claimant was not disposed to provide information on this visit of his claimed period of sickness. We do not suggest that an employee must see a doctor on the first day of a sickness or even that each sickness requires a doctor's care of the evidenciary limitations of the doctor's statement, there is no basis for disturbing the Carrier's action on the grounds that it was arbitrary or capricious. Accord
        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 ?1, 1934;

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

        The claim is dismissed.


                    A W A R D


        Claim dismissed.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division

ATTEST: ~w~

        Executive Secretary


Dated at Chicago, Illinois, this 7th day of September 1973.
              NATIONAL RAILROAD ADJUSTMENT BOARD

              Award Number 19911

              THIRD DIVISION Docket Number CL-19995


                Frederick R. Blackwell, Referee


(Brotherhood of Railway, Airline and Steamship Clerk, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

              ,STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL7168) that:


        1) Carrier violated the Clerks' Rules Agreement at Chicago,

Illinois when it failed to grant employe F. Herner pay for time absent.
 account sickness.

 2) Carrier shall now be required to compensate employe F. Herner for a day's pay in the amount of $35.49 for March 9, 10, 11 and 12, 1971.

 OPINION OF BOARD: This is a sick pay dispute in which claimant received
 pay for the last two of six days of claimed sickness.
 After marking off sick with a fever from Tuesday, March 9 through Wednesday,
 March 17, 1971, claimant requested six days sick pay. (March 9, 10, 11, 12,
 15, and 16, 1971). In his sick pay request he stated that he had made
 "visits to doctors and hospital; also, went to drug store for medications."
 Upon Carrier's request therefor, he submitted a doctor's statement, dated
 March 13, 1971 and reading as follows:

          "Mr. Herner was seen in my office today for evaluation of fever of undetermined origin. Studies are under way to determine the source of fever."


After receiving the above statement the Carrier allowed sick pay for the latter part of the claim (i.e., March 15 and 16, the two work days immediately following claimant's March 13 visit to the doctor's office); however, Carrier disallowed sick pay for the former part of the claim (i. e., March 9, 10, 11, and 12, the four days preceeding the office visit). Carrier's stated reason for the evidence of sickness for the latter part of the claim, but not the former part.

 The Agreement language pertinent to this dispute, found in Memorandum No. 2, September 1, 1941, reads as follows:<
                    Award Number 19911 Page 2

                    Docket Number CL-19995


          "Regularly assigned clerical employes will be granted pay for time absent account sickness as follows:


          (D) Employes with three years or more seniority as a clerk -- ten working days.


          (H) The employing officer must be satisfied that the sickness is bona fide. 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."


Petitioner contends that the facts of this situation and the foregoing provisions of Memorandum No. 2 do not support Carrier's action. In defense, the Carrier says that, because of doubts about this particular claim, it invoked the paragraph (H) requirement for a doctor's statement and, further, that its action in respect to such statement was not arbitrary or capricious. Thus, th action in respect to the doctor's statement was arbitrary or capricious.

 Petitioner's argument on the issue is that, by accepting the statement as validating the latter part of the claim, the Carrier in effect admitted the validity of the former part. In speaking on this point in its Rebuttal Brief, the Petitioner stated:

          " ..if employe Herner's absence on the dates March 15 and 16, 1971 was the result of a bona fide sickness why then did the Carrier refuse to consider the dates of March 9 to and including March 12, 1971? Surely he did not have a doctor's certificate saying he treated him on those two dates."


Petitioner seems to urge here that the evidence of sickness was essentially the same for both the former and latter part of the claim period and, consequently, if Carrier had reason to pay the latter part, it should have paid the former part also. We appreciate the logic of this contention, for, indeed, the doctor's statement can be read as providing information about claimant's health on March 13, but as providing no information at all about his health during either the former or latter part of the claim period. The logic is not flawless, however, because even though one may validly conclude that the evidenciar no better than the basis for the disallowed part, this conclusion does not
                    Award Number 19911 Page 3

                    Docket Number CL-19995


provide any evidence for the disallowed part. Carrier was within its rights in challenging the genuiness of the claimant's sickness and the organization had opportunity to provide evidence, including lay evidence, in response to the challencge. Claimant's sick leave request referred, for example, to a hospital visit, but claimant was not disposed to provide information on this visit of his claimed period of sickness. We do not suggest that an employee must see a doctor on the first day of a sickness or even that each sickness requires a doctor's care of the evidenciary limitations of the doctor's statement, there is no basis for disturbing the Carrier's action on the grounds that it was arbitrary or capricious. Accord
        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 ?1, 1934;

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

        The claim is dismissed.


                    A W A R D


        Claim dismissed.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 7th day of September 1973.