PARTIES TO THE DISPUTE:

 Brotherhood of Railway, Airline and Staamship Clerks, Freight Handlora. Express and Station Employes

Consolidated Rail Corporation

 STATEMENT OF CLAIM:

















OPINION OF BOARD:
 The faots of this case are not concestad and the matter comes to us as a dispute over the interpretation and application to those facts of Rule 4-I-1 Sick Leave, which reads in pertinent part as follows:

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- which he is compensated by the Company for service
                  ance and eligibility therefore shall be calculated

                  from the date of his entrance into service.


      The unrefuced record establishes that Claimant entered service of the Carrier on May 2$, 1975. She was furloughed from June 20, 1975 t- August 11, 1975. Thereafter, she worked until December 22, 1975 when she was granted an unpaid medical leave of absence. She remained on medical leave for approximately 15 months and did not return to service until March 9, 1977. During the time she was on leave her seniority continued to accrue and she displaced a junior employe upon her return to service. During the period of claim, Claimant was assigned to Position ;11534, Sort and Yail, netroit System Office, 7:30 A.M. to 4:00 P.M., thirty minutes lunch, rest days of Sunday and Monday, rate of $904.42. On April 15, May 4 and 6, 1977, Claimant was absent from duty account of illness. Upon her return, she presented a doctor's certificate for each date. By letter dated May 25, 1977, claim was submitted in Claimant's behalf under the provisions of Rule r-T-1, claiming a day's pay for each date listed above.

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        By letter of March 14, 1978 Carrier's Senior Director-Tabor Relations made a final denial of the claim, reading in pertinent part as follows:


              Claimant worked for the Carrier a total. of 96 days to March 9 1977, and with the time worked subsequent to this date she still had under one year of continuous service.


              Rule 4--x--1 requires an employee bo be in continuous service of the Carrier for one year to receive five working days the following year; two hears for 7i working days; and three. years for 3.0 working days.


              Note 1 in 4-I--l(a)-·3 clari;ies the term "continuous service"

' by defining it tis the years an enploye- is oompomsataaz*
              the Company for service. Your position that Third Divisiorc

              Award 7.6591 is applicable is incor;-ect, as the claimant in

              that Award had a seniority date of March 3, 3.94$, and had

              the required continuous service with the Carrier.


              Accordingly, Claim is denied.


              very truly yours,.


        R. Walsh

        - Senior Director-Labor Relations


        Thereafter, the matter was appalled to this Board for disposition.

      As the well-developed record and submissions on the property show, there is a,division of authority among the reported decisions concerning the meaning of the phrase "in the continuous service of the Company". specifically, two cases have defined "continuous service" to mean implicitly the day-today performance of work without a break. Awards 3-5201 and 3-13688. The majority view, however, has equated "continuous service" with maintenance of the employer-employe relationship without severance, irrespective of whether the . employe actually performed compensated duties throughout the period without

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 missing a day from work. Awards 3-5469; 3-16591; 3-16535; 3»21478;
 Awards 14 and 15 of SBA No. 269, In the absence of additional qualifying
 language or convincing evidence of a contrary practice by parties under a
 particular contract, we favor the view expressed in the latter line of
 cases, e.g..'

            In Third Division Award No. 36591 (McGovern) the Board held:


    _ "Carrier in furtherance of its position propounds the argument that the

            word continuous is the key word in the cited rule and that since its

            ordinary and generally understood meaning is without break,-cessation

            or interruption, Claimant has no basis for his action in this case.


            "We have reviewed and considered the arguments advanced by both sides in this controversy. The cited rule, Which governs the disposition of this case is clear, precise, unambiguous and in our judgement not susceptible to the interpretation which Carrier urges upon us. Claimant, although absent from his assignment because of illness, was for all intents and purposes still an employe of the Carrier, The relationship was that of employer-employe, the best argument for this being his subsequent return to duty without any question being raised by Carrier as to.his status. His seniority was unimpaired and unaffected by his prolonged illness. He was therefore in continuous service as those words were meant to be construed by the parties. To hold otherwise would mean that one day's illness would interrupt an employe's service, thus effectively rendering sick leave provision of the contract nugatory. Further, Claimant remained on the rolls of the Carrier and having had far in excess of five years service, was entitled to 10 days sick leave beginning ors January 1. 1t was not with in the contemplation of the contracting parties than an employe must actually perform his duties at the beginning of the calendar year as a condition precedent to qualifying for sick leave. If this was the intent of the parties, language could have been inserted in the contract to specifically state that intent. The language adopted mili tates against such an intent. We will accordingly sustain the claim. (See Awards 14 and 15 of Special Board of Adjustment No. 269)"


            In Third Division Award No. 16535 (McGovern) the Board said:


            "The rule upon which the claim is based is clear and unambiguous. 'there is no question that the Claimant was in the continuous service of the Carrier, as qias evidenced later by granting of his vacation with pay and subsequent return to duty status. Carrier has candidly admitted this interpretation as being correct when it stated that if an employe was ill the last few days of a given year and his illness continued for a few days into the next year, they would not deduct from his pay. To submit that a man, employed from 1943 to 1964 is not considered as being 'in continuous service' of the Carrier as envisioned by the rule. is a proposition to which we cannot subscribe. We will sustain the

      . claim."

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~2~3-.wa ~~ .....

            In Third Division Award No. 21478 (Eischen) the majority held:


              "Upon consideration of the record as de~r_loped on the property and the authorities cited by the parties, e.e are convinced that Carrier vio lated Rule 56 in denying Ctai-ant .`.=r sick leave for 1973. The core of this dispute lies in a determin_tIon whether Claimant as of January 1, 1973 had been 'in service ten (10) years or over' as that phrase is used in Rule 56. The words of the rule say "in service" and nothing more; there is no express requirement that Claimant be on active duty nor that she have performed'compensable ser"rice in the preceding year. Carrier argues that these additional qualifications rust be read into the rule because of the mutual intent of the parties as evidenced by past practice. This reasoning is faulty on two grounds: 1) In the face of clear and unambiguous language we may not look to contrary practice and 2) The so-called practice was under the old rule which required the employes to have been 'in service continuously' to qualify for sick leave. If

" Carrier wishes to return to the ol-' rule or obtain modification of Rule
              56, it must seek to do so at the bargaining table. We cannot re write _ _

              Rule 56 in the manner sought by an Award of this Board, even in the face

              of unanticipated and possibly inequitable situations.


              "Claimant was on a leave of absence status as of January 1, 1973, her employment relationship with Carrier had never been severed since 1946 and, for the purposes of Rule 56, she gad been 'in service' for over ten years. See Awards 5201, 16535 (Supplemental); Awards 14 and i5 of SBA No. 269. Accordingly, we find that Carrier violated the controlling

              - Agreement when it denied her a sick leave day on November 29, 1973 and later refused to. compensate her for her unused sick days in 1973. The claim shall be sustained."


        We find no additional qualifying language in·Rule 4-T_-1(a)(1) which would dictate a result other than that followed in the majority line of cases supra. Carrier suggests that such langua3e is found in Note 1 to RRule 4-I-1(a)(3) which must be imputed back to the phrase "continuous service" in Rule 4-I-1(a)(1).

        clearly, the condition subaequent set forth in note 1 applies to attainment of the

        ultimate sicit leave benefit level of ten vork~.ag days granted in Rule 4-I-1(a)(3).

        But both by context and its ow:. terms, that condition does not govern attainment

        of the two previous benefit levels set fo7th at Rule 4. I-1(a)(1) and (2). Thus,

        we conclude that Note 1 is not dispositiva of this case.

        claimant herein sought three (3) w=rkisg days of sick leave in April and

        May 1977.. At that time, she had co n-?lete°- in excess of one (1) year of con

        tinuous service, including the furlough aAd madical leave of absence time,

since her date of hire on May 28, 1975. She thus fulfilled t^e requirements of Rule 4-I-1(a)(1) and Carrier erred in de=ing her requast __°or sick leave, We shall sustain the claim.

                        AWARD

Claim sustained. Carrier shall com;ly with this Award within thirty (30) days of issuance.

 Employe Mem e Ca -rier Member

                  Dana £. Eischen, ' 'zman


Date: /,