Dana E. Eischen, Referee


              (Brotherhood of Railway, Airline and Steamship Clerks,

( Freight Hailers, Express and Station Employee PARTIES TO DISPUTE:
              (The Chesapeake and Ohio Railway Company


                STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8577) that:


(a) The Carrier violated the terms of Rule 60 September 11, 72, and 13, 1974 when they refused to pay Mr. Wm. D. Keim, Jr, because he was absent, due to infection in th
        Mr. Wm. D. Keim, Jr. worked on September 10, 1974 with a swollen ,haw and a toothache, then he went to a dentist at 6 p.m. on September 10, 1974 for advice and/or treatment in connection with his toothache, which was diagnosed as as obsessed tooth that would require the attention of an Oral Burgeon and,


(b) Mr. Wm. D. Keim, Jr. incumbent of A-565 Payroll Accounting Clerk, rate $50.06 per day should now be allowed three days at the pro rata rate of $50.06 per day because of this violation on September 11, 72, 13, 1974.

 OPINION OF BOARD: At the time the instant Claim arose, Claimant wen employed in
 Carrier's Finance Department, Baltimore, Maryland on the Auditor of Expenditures Roster, Baltimore General Office District. He wen regularly assigned to the position of Payroll Accounting Clerk, A-565 wish a rate of $50.06 per day.

 On Tuesday, September 10, 1974 Claimant visited his dentist after his tour of duty regarding a toothache and swollen ,jaw. Lis dentist referred him to an Oral Surgeons Theodore S. Freedman, D.D.S. for treatment. On Wednesday, September 11, 1974 Claimant's tooth was extracted and he did not report for work on Thursday, September 12, or Friday, September 13s 1974. Claimant requested sick pay under the provisions of Rule 60 of the Agreement between the parties for each of these three days. He was advised by Carrier that such absences were not compensable under the app hospital for actual dental surgery.

 Local Chairman E. R. Dotson filed a claim on behalf of Claimant by letter dated October 9, 1974 for one (1) day's pay for each of the dates September 11, 12 and 13, 1974. The claim was denied by the Director of Payroll
                        Award Number 23531 Page 2

                        Docket Number CL-22579


accounting in a letter dated December 10, 1974. Under date of January 9, 1975, the General Chairman appealed the claim to Carrier's Director of Labor Relations. The appeal was denied in a letter dated May 6, 1976.

        Rule 60 reads as follows:


        "RULE 60-ABSENT ACCOUNT PERSONAL ILLS WITH PAY


        1. There is hereby established a non-governmental plan for

        sickness allowances or sickness allowances supplemental to. the

        sickmesa benefit provisions of the Railroad Unemployment

        Insurance Art as now in effect or as hereafter amended. The

        purpose of this plan is to provide sickness allowances to

        employee absent account of illness and to supplement the ben

        efits provided under the Railroad Unemployment Insurance pct

        where benefits are payable thereunder.


        2. The plan provided for herein contemplates that on any

        given day for which an employs 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 employs 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 em

        ploys would have had a right to work with a maximum of five

        days supplemental benefits in say calendar week).


        3. Beginning on the first day an employs is absent from

        work due to personal illness (not including pregnancy) and

        extending is each instance for the length of time determined

        by the provisions of the Subsections of this Section 3, each

        such employs shall be entitled to a sickness allowance for

        such days of illness on which he otherwise would Yiave worked

        (subject to the provisions of Section 2 hereof) in accordance

        with the schedule of benefits set forth in the following

        Subsections:


          (a) Employes with less than 2 years' service-1/2 pay after 5 working days lost but not exceeding 5 days in any calendar year.


          (b) Employes with ? to 5 years' service-entitled to 5 days pay after first 5 working days loot in any calendar year.


          (c) Employee with 5 to 10 years' service-entitled to 10 days without arty waiting time in any calendar year.

                Award Nutuber 23531 Page 3

                Docket Number CL-22579


    "(d) Employes with 10 or more years' service-entitled to 20 days without any waiting time in any calendar year.


    (e) ~5nployes may accumulate ;mused sick leave for previous years up to a maximum of 60 Pull time days.


4. The supervising officer of the Carrier will supply
 employee 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 employs from the Retirement
 Board and the making of payment by the Carrier of any supple
 mental benefits due the employs under the provisions of this
 Rule.

 In the event an employs forfF,*ts 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 employs who is absent account of personal
 illness, including the first five days of an employs with
 less than five 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 rift of the Carrier to use other employee on
 duty to assist in performing duties of the position of the employs
 absent under this rule is recognized provided, however, the ab
 sentee's work performed by "other employee" is performed within
 the assigned hours of the "other employee".

 6. The employing 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 shell
 determine, under the principles stated in this paragraph, whether
 sick leave compensation or supplemental allowances are to be paid.
 Any employs who is not entitled to Railroad Unemployment Insurance
 Act sickness benefits by virtue of insufficient earnings in a base
 year, or where period of illness is not of sufficient length 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.
                Award Number 23531 page 4

                Docket Number CL-22573


. 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 employs 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 hardship cases, local agreement is otherwise reached) may be used, which will be deduc the time which he would otherwise have available for time lost account personal illness.

    NOTE l: Absence from duty account of off-duty injury will be considered the same as absence account of personal illness for purposes of this Rule, provided such injury is not a result of misconduct on the part of the employs. If an employs is compensated under this Rule and receives damages becaus injury, the Carrier will be reimbursed for allowances made hereunder; however, such reimbursement will be limited to the amount received in damages or the allowances received under this Rule, whichever is l


    NOTE 2: Cut-off and extra employee who wake themselves available to protect work under Rule 12 o this Agreement will be eligible for sickness allowances under this rule on days of illness on which they would otherwise have worked, provided they work sufficient days in the preceding year to qualify for a vacation in the current year under the National Vacation Agreement of December 17, 1941, as amended.


    NOTE 3: All employee who are receiving allowances or benefits under protective agreements such as the Stabilization Agreement of February 7, 1965, the socalled AMTRAK Agreement effective May 1, 1971, the Washington Agreement and agreements covering intracarrier consolidations, transfers and reorganizati will be eligible for sickness allowances as prescribed in this rule.

                        Award Number 23531 Page 5

                        Docket Number CL-22579


            "NOTE 4: A regularly assigned employs who has e protected rate under a protective agreement and who is entitled to allowances under this rule, will be paid at the rate of his regular assignment (position to which assigned by bulletin) or his protected rate, whichever is higher.


            A cut-off or extra emnloye who has a protected rate uad

            er a protective agreement end who is entitled to allowances under this rule, will be paid at the rate o position he would have worked or his protected rate, whichever is higher."


We need not linger overlong on this case because the claim clearly is sustainable under Rule 60. There can be no doubt that Claimant's absence from work was due to a bona fide and serious personal illness. The unrefhted record inalteling a written statement from his oral surgeon demo_::;trates that Claimant's ailment was not trivial affil no one who has had dental surgery for removal of an impacted tooth or suffer:d from an abaoesaed tooth would so argue, Carrier's theory that Rule 60 applies to dental surgery involving hospital confinement but not to dental surgery involving home convalescence finds m support in the language of tie Rule sad cannot be engrafted thereon under the guise of interpretation by this Board.

        Based on the foregoing, therefore, the Claim is 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 Employee involved in this dispute are respectively (terrier and Employees within the meaning of the Railway Labor Act, as approved June 21, 193;

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

        That the Agreement was violated.

                          Award Number 23531 Page G

                        Docket Number CL-22579

                        A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSM40T BOARD

                            By Order of Third Division


ATTEST: .00
 Executive Secretary

 Dated at Chicago, Illinois this 26th day of February 1992.

 '!cC~IL,

 %/ \\.1i

 1 . .~ ~ r, /L ~ ~. ~') a
 1
            ~1~

            `~Jv


V n
 ~ f,
 ~\ li~l. j
          i