NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-23089
Martin F. Scheinman, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(New Orleans Public Belt Railroad
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8897)
that:
1. Carrier violated, and continues to violate, the parties' Agreement
when it refused to compensate Miss Myrna Campbell for two (2) days sick leave
in accordance with the rules of the Agreement.
2. Carrier shall be required to compensate employe Myrne Campbell
eight (8) hours pay for the dates September 8 and 9, 1978, when she was absent
due to illness.
OPINION OF BOARD: Claimant, Myrna Campbell, was involved in an accident
on August 25th, 1978. As a result of injuries sustained
Claimant did not work from August 25th through September 11th, 1978. Claimant
requested sick pay for each of these days.
Claimant received sick pay for all of the days requested except for
two days, September 8th and 9th. Carrier refused to grant sick pay for these
days because it did not believe Claimant's sickness to be bona fide. Carrier's
argument was based on the fact that Claimant was observed by the Assistant
General Manager and Secretary-Treasurer testifying in court on September 8th.
The Organization claims that Carrier's failure to allow Claimant
sick time for September 8th and 9th violates Section V, Rule 8 of the Agreement. It contends that Claimant provided the documentation required in
Rule 8.
A determination of whether Claimant is entitled to sick pay, on
the days in question, requires the interpretation of Section V, Rule 8.
It states:
"No payments shall be made under this section unless the
employee's supervisor is satisfied that the sickness is
bona fide and of sufficient severity to require an absence
from work. Satisfactory evidence as to sickness in the
form of a certificate from a reputable physician will be
required in case of doubt."
Award Number 22993 Page 2
Docket Number CL-23089
Under Rule 8 the payment of sick pay is not automatic. On the
contrary, the parties have agreed that payment is not to be paid "unless
the supervisor is satisfied that a sickness is bona fide."
However, Rule 8 does not leave it to the supervisor to decide
which sicknesses are bona fide and which sicknesses are not. Instead,
a mechanism is provided for making such determinations. Carrier may require
the employe to submit a certificate from a reputable physician when there
is doubt whether the sickness is bona fide. This is the only method
contemplated in Rule 8.
Here, Claimant submitted medical documentation. The physician
indicated that Claimant could return to work on September 11th. There is
nothing to indicate that the physician was not "reputable." Under the
terms of Section V, Rule 8, the physician's determination on Claimant's
physical ability to perform her job may not be second guessed.
We will sustain the claim for 809< of her regular salary, in
accordance with the Sick Leave Rule.
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 is 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 in accordance with Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 29th day of September 1980.