(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9562) that:
(a) Carrier violated Rules 12, 31, 35 and others of the Clerks' Agreement on January 9, 1977 when they improperly called and used Clerk J. S. Wilkes to fill a temporary vacancy on Position C-595 and did then fail to properly compensate him for service performed.
(b) Carrier now be required to pay Clerk Wilkes the difference between pro rata rate and punitive rate for service performed on January 9, 1977 and,
(c) Carrier further be required to allow Clerk Gus Stassinos eight (8) hours pay at the punitive rate of $52.67 per day for January 9, 1977 account Carrier's improper use of Clerk Wilkes on this date. (Carrier's file CG-11980)
OPINION OF BOARD: At the time of this claim, Clerk J. S. Wilkes was a furloughed
 employe at Newport News, Virginia. Claimant was protecting a
 temporary vacancy during the week of January 3-9, 1977. Claimant worked on January
 3, 4 and 5. No work was available on January 6 and Claimant marked off sick on
 January 7 and 8. Claimant marked up and was called and worked on January 9,
 1977. Prior to this incident, Carrier had notified Claimant that any absences
 for illness must be verified in order for him to qualify for sick pay. That
 verification was not submitted to Carrier until January 10th and Claimant was
 then allowed sick pay for January 7 and 8. Claimant was only authorized pro rata
 pay for January 9th. Organization contends that he should have been paid the
 punitive rate for that day, since Claimant received pay for 40 hours in five days
 immediately preceding January 9th.
At the same time, Clerk Gus Stassinos filed a claim for eight hours' pay at the punitive rate, because a Clerk junior to him was called to fill a position on an overtime basis on January 9, 1979.
Carrier contends that it was Claimant's obligation to produce the required Doctor's certificate before he marked up and indicated he was available for service. If he had done so, he would not have been called to work on January 9th and no claim from him or Claimant Stassinos would have resulted.
After a review of this record, this Board is persuaded that Claimant's failure to produce the required medical documentation is at the root of both claims cited in this case. Carrier should not be held responsible for Claimant's actions in this instance.
                    Award Number 25379 Page 2

                    Docket Number CL-24510


To sustain the instant claim would be to award a windfall to both Claimants that was brought about by Claimant Wilke's failure to meet his responsibilities. This Board cannot endorse such an outcome.
        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 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
        That the Agreement was not violated.


                        A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:~
 Nancy ver'- Executive Secretary
        Dated at Chicago, Illinois, this 15th day of April 1985.

            LABOR MEMBER'S DISSENT TO

            AWARD 25379 , DOCKET CL-24510

            (REFEREE W. S. COLEMAN)


The majority opinion has erred in its decision. It stands unrefuted that Claimant Wilkes worked January 3, 4, and 5, 1977. He was off sick and paid under the provisions of Rule 60 for the dates of January 7 and 8, 1977, giving him a total of forty (40) straight time hours within that week. Therefore, in accordance with Rule 12, he was not available for service on a straight time bas The fact that the Carrier chose not to credit sick payment for January 7 and 8, 1977 until after January 9, 1977 does not alter the clear provisions of Rules 12, 31 and 35 and it was because of such, Claimant Wilkes was entitled to the difference between straight time rate allowed and time and one-half for January 9, 1977.

 The record is undisputed that Carrier elected to fill the vacancy on Position C-595 on January 9, 1977. It is equally clear that if the Carrier hadn't used Claimant Wilkes to fill the vacancy on Position C-595, in violation of Rule 12 and others, Claimant Stassinos would have stood for such work on an overtime basis under the provision of the local overtime agreement and thus is entitled to payment of eight (8) hours pay at the time and one-half rate as requested.

 The majority has determined, based upon the record presented, that Claimant Wilkes was required when it stands unrefuted by both parties that if the Carrier had called the vacancy on the overtime basis, as they should have, Claimant Stassinos would have been the proper employe to call. Thus, it should logically follow that no matter whose fault it was, Claimant Stassinos should have been compensated.

 Awards arrived at through faulty logic do not carry any precedential value. Award 25379 is palpably wrong.

                          William R. Miller, Labor Member


                          Date April 23, 1985


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