(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

(1) The Carrier violated the Agreement when it failed and refused to allow Section Foreman W. T. Burton sickness benefits during January 1972 (System File MW-70(e) 4/20/72).

 (2) Section Foreman W. T. Burton be allowed $365.84 because of the violation referred to within Part (1) of this claim.

 OPINION OF BOARD: Claiaant seeks sickness benefits of $365.84 under
 Rule 63 of Agreement. He entered service in the
 Carrier's Track Department April 16, 1935, and he was promoted to section
 foreman effective January 15, 1945. Effective May 1, 1971, the parties
 negotiated the sick leave benefit rule, Rule 63, of the current agreement.
 Under the terms of Rule 63, the Claimant, having had more than twenty
 (20) years of continuous service in which he had qualified for vacation
 under the provisions of the National Vacation Agreement of December 17,
 l941, as amended, was entitled to 20 days' sick benefits in the year
 1971.

 Claimant was off account illness for five days in October, 1971, and received payment for these five days under sick benefit rule 63. On December 6, 1971, the Claimant was again absent to have surgery for an ulcer. He claimed and was allowed payment for fifteen days sick benefits under Rule 63, from Monday, December 6, through Friday, December 24, 1971.

 When Claimant became ill on December 6, 1971, he immediately secured a leave of absence. When his sick benefits for 1971 were used up after Friday, December 24, 1971, the Carrier placed the Claimant on leave of absence effective December 27, 1971. Claimant's illness continued on until his return to se any compensated service for the Carrier between December 6, 1971 and March 1, 1972, when he again returned to service as section foreman at Beulah, North Dakota.

 On January 29, 1972, Claimant submitted claim forms seeking payment of 20 days' sick benefits for January 3 through 28, 1972.


The claim for 20 days' sick benefits for January 3 through January 28, 1972 was denied by the Carrier on the basis of Rule 63 I, reading:

The Carrier takes the position that when Claimant was on leave of absence December 27, 1971 and continued being absent until March 1, 1972, Claimant was on a formal leave of absence during which he was not entitled to the benefits of Rule 63.

 The Organization denies that Claimant was on formal leave of absence under Rule 63 I. The Organization takes the position that Claimant was on a single and continuous sick leave of absence pursuant to the provisions of Rule 15, Leave of Absence, and that such status did not change on December 27, 1971 with the expiration of sick benefits for 1971. Rule 15 reads;



The Carrier's position is logical, and if Claimant was in the status of formal leave of absence under Rule 63 I, we would have no choice but to deny this claim. The problem before us is to determine whether Claimant was on formal leave of absence under Rule 63 I.

 We note that the term "formal leave of absence" in Rule 63 I is given no contractual definition. What does it mean? Does it include absence for sickness provided for in Rule 15? It is clear from the record that Rule 63, which is captioned "Sick and Funeral Leave", is expressly intended to serve the purpose and objective of providing
                  Docket Number MW-20216


sickness benefits. It is equally clear that Rule 63 was the source for Claimant's 20 days' sick benefits in 1971. It is also clear that Claimant was on leave under the provisions of Rule 15 between December 6 and 27, 1971. On this recor Rule 63.

 The question is raised, however, whether "formal leave of absence" starts to run when sickness benefits are used up; i.e., after December 27, 1971. Such an interpretation would preserve some of the usefulness and purpose of Rule 63. We can find, however, no language whatsoever in Rule c:3 to support such construction. It is not our province to write such language into the rule. Our review of the record clearly shows that Claimant was on a continuous leave of absence for the same illness for the continuing and entire period of December 6, 1971 to March 1, 1972. We can find no language in the Agreement to justify calling one part of this period (December 6-24, 1971) sick leave and not formal leave while calling the second part of this period (December 27, 1971-March 1, 1972) formal leave and not sick leave. Since all of the leave, as a whole, involves the very same sickness, and since the Carrier recognized and paid for the first part as sick leave under Rules E3 and 15, we must conclude that the second part here in dispute is equally sick leave and not formal leave for the purposes of these riles.

        FILINGS: 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 the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
        That the Agreement was violated.

                    Award Number 20278 Page 4

                  Docket Number MW-20210

                  A W A R D


        Claim sustained.


                        NATIONAL RAILROAD ADJUBTMMT BOARD


                211 13Y Order of Third Division


ATTEST: r
 Executive Secretary

 Dated at Chicago, Illinois, this 14th day of June 1974.

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