(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Illinois Central Gulf Railroad Company

(1) The Agreement was violated when Trackman Fred Borders was not allowed to return to work on December 30, 1974 (System File 134-233-611-Case No. 960 MofW/SL-175-T-75).

 (2) The Carrier shall now pay Trackman Fred Borders for each day's work beginning December 30, 1974 and continuing until such time that he is allowed to return to work.

 OPINION OF BOARD: Claimant was absent from work due to illness from
 October 14, 1974 through December 29, 1974. During
 that period of time Claimant entered the out-patient clinic of the
 Missouri Pacific Employes' Hospital on four occasiona,namaly, October
 16, November 27, December 9, and December 24, 1974. Claimant was pro
 vided with a "Release Certificate" from the hospital, stating that he
 would be able to resume work on December 30, 1974. The Certificate
 was initialled by the doctor who had been treating Claimant.

 When Claimant reported for work on December 30, 1974 to Section 508 at Venice, Illinois, he was told by his foreman that he could not work because he had been terminated for failing to follow the provisions of Rule 39.



According to the Carrier, Claimant was absent from work for more than five days without permission, and was therefore considered as having resigned from the service.


Claimant argues that the last clause in Rule 39 conditions the rule for the protection of those who are absent on account of "physical incapacity."

 The Board finds the language in Rsle 39 unambiguous. Thus, the last clause of the rule which states, " ..unless such absence from service is due to physical incapacity as evidenced by a release signed by a medical doctor" conditions the previous part of the rule which says, "...will be considered as having abandoned his position and resigned from the service."

 Therefore, Rule 39 clearly indicates that if an employe is absent from his assigned position without permission for five (5) consecutive workdays, he wi position and resigned from the service, as long As his absence from service was due to physical incapacity as evidenced by a release signed by a medical doctor. (Emphasis added).

 What does "physical incapacity" mean? It does not mean as indicated by the Carrier, that the Claimant must be able to demonstrate that he was so ill as not to be able to talk on the telephone nor write a letter to notify the Carrier.' The "physical incapacity" hare refers to the employe's lack of fitness or ability to do his regular Job, for fi 3 39 clearly reads in relevant part, "...unless such absence from serv=..a is due to physical inca ...."

 Also, notice the phrase, "...evidenced by a release signed by a medical doctor" (Emphasis added). This "release" does not necessarily mean, as the Carrier has implied, that it has to be a "hospital" release as opposed to an "out-patient clinic" release. The word "release" is not modified by any restrictive adjective. All that is required here is that the employs not have been able to do his regular job, and that he obtain a release signed by a medical doctor, presumably whose care he was under for the period of incapacitation.

 The Board is not arguing here that it is a good practice to permit an employs not to noti days about his absence occasioned by a physical disability which is evidenced by a release signed that may be). All we are saying here is that Rule 39 as presently written, does permit this.

 The Board is not empowered to change, amend or alter any Agreement rule under the guise of inter 7166, 6833, 6365, 5971, 5703, 5294, 4763).
                  Award Number 21061 Page 3

                  Docket Number MW-21348


    A last point to be considered by the Board is the allegation by the Carrier that it never received a release signed by a medical doctor. While this statement. is made in its submission, the Carrier clearly acknowledged on the property that it did indeed receive such a release. Such release is also reproduced as Employee' Exhibit "A". The Board therefore finds that under these release must be resolved in the Claimant's favor (Award 11656).


          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 resgactivaly 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 upheld in its entirety.'


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


' ATTEST:~. P

Executive Secretary

 Dated at Chicago, Illinois, this 29th day of April 1976