AWARDS 126 - ABSENCE DUE TO ILLNESS OR INJURY NOT VOLUNTARY ABSENCE

Third Division Award No. 29548 (Duffy)

"Claimant was off on a medical leave for foot surgery from May 11, 1989, to March 1, 1990. The Carrier refused to count this time for normal rate progression purposes, arguing that it constituted a `voluntary absence' under the Agreement. The Organization filed the instant claim, asserting that medical leaves of absence were not contemplated as voluntary absences under the Agreement.

"We find the Organization's arguments persuasive that Third Division Awards 24857 and 27952 are controlling precedent in this matter. In Award 24857 the Board held:

"`This Board cannot agree with the Carrier that any absence which it does not impose is necessarily a "voluntary absence" within the meaning of article VIII, Section 1(c), nor does it believe that the precedent cited supports such a proposition. Giving words their ordinary and accepted meaning this Board is unable to conclude absence due to legitimate injury or illness is a voluntary absence for purposes of the cited section. Accordingly, Claimant had completed the twelve month period when he returned to work in December and should have been paid at the 100% rate thereafter.'

"We find Third Division Award 26294 cited by the Carrier readily distinguishable in that the Board found in that case that the Carrier had proven a long-standing practice on the property of not counting such absences for purposes of computing entry-level rates, and that the Agreement in question provided that local Rules or practices would continue to apply for employees hired before January 1, 1982."