"Claim of the System Committee of the Organization (GL-11173) that:

(a) Carrier violated the rules of the current Clerks' Agreement at Fresno, California, commencing on January 1, 1993, when if failed and/or refused to correctly credit Claimant R. D. Pedersen with the correct number of sick leave days when it removed him from an exempt position and returned him to a scheduled position.

(b) Claimant R. D. Pedersen shag now have his sick leave days correctly adjusted by adding five (5) days which were taken (January 3, 6, 7, 8 and (February) 25, 1992) while assigned to an exempt position and charged to scheduled covered unused allowance; and

(c) Claimant R. D. Pedersen, in addition to (b) above, shall also be credited with ten (10) days sick leave for 1991, as a result of such violation of Agreement Rules."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

At issue in this case is whether Carrier violated the Agreement when it deducted sick days used by Claimant when he was an exempt employee from sick days he was entitled to when he returned to the clerical ranks after he was removed from his exempt position. Claimant was appointed to an exempt (salaried) position from January 1, 1991, and held the position until March 1, 1992, when he was removed from the position and exercised his clerical seniority at Fresno, California, on Relief Position No. 9339.

The Organization maintains that there are no provisions within the Sick Leave Agreement which allows the Carrier to deduct sick leave allowance from an employee who is in the capacity of something other than a Clerk. Nor was there any enunciated practice to that effect. The Carrier contends that nowhere in the Agreement provision dealing with Sick Pay is there a prohibition against Carrier's treatment of Claimant Moreover, the Carrier asserts that there was, indeed, a past practice of deducting sick leave used as a non-Agreement employee from that employee's sick leave entitlement when s/he returns to a position covered by the Agreement.

The present record before the Board offers no assistance in resolving the parties' dispute in this matter. As noted by the Carrier, the Agreement is silent with respect to the situation in which an employee uses sick leave in an exempt position and then returns to an Agreement-covered position. Nor has the Organization offered any evidence to indicate that Carrier's assertions regarding its past practice are incorrect. Thus, the instant claim is dismissed for failure of proof.

AWARD