The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
EMPLOYES' STATEMENT OF FACTS: Electrician D. E. Davies, hereinafter referred to as the Claimant, was assigned, prior to February 10, 1966, as an electrician under the supervision of Mr. W. T. McPherson, Electrical Supervisor, Tucson-Rio Grande Division, and was headquartered at Tucson, Arizona.
Under date of December 17, 1965, by letter, Claimant requested a thirty day leave of absence from Electrical Supervisor W. T. McPherson. Said Electrical Supervisor agreed to allow Claimant the last two weeks in December, 1965 on leave of absence and was also agreeable to allowing him to take his three weeks vacation commencing January 1, 1966.
On February 9, 1966, formal hearing was conducted by Carrier's repre>entative at Tucson, Arizona and on February 10, 1966, Claimant was dismissed from the service of the Southern Pacific Company (Pacific Lines) for 3.1leged violation of Rule 810 of the Carrier's General Regulations, reading:
The Board has previously interpreted this rule providing for compensation for "wage loss, if any" as requiring deduction of outside earnings in computing compensation due. See Second Division Awards 2523 and 2653.
Following his dismissal, claimant was allowed all vacation pay to which he was entitled in accordance with the controlling Vacation Agreement. Carrier is not aware of any other vacation rights which would flow to the claimant under the Vacation Agreement and, in fact, asserts there are none. Petitioner's requests that the Company pay premiums for hospital, surgical and medical benefits and pay the premiums for life insurance are not supported by any rule, custom or practice in effect on carrier's property and, carrier asserts, are not properly referrable to your Honorable Board.
The carrier respectfully submits that having conclusively established that the claim is entirely without merit, it should be denied.
All data herein submitted have been presented to the duly authorized representative of the petitioner and were made a part of the particular question in dispute.
The carrier reserves the right, if and when it is furnished with the submission which may have been or will be filed ex parte by the petitioner in this case, to make such further answers as may be necessary in -elation to all allegations and claims as may be advanced by the petitioner n such submission, which cannot be forecast by the carrier at this time and. lave not been answered in this the carrier's initial submission.
FINDINGS: The Second Division of the Adjustment Board, upon the rhole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this ispute are respectively carrier and employe within the meaning of the :ailway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute evolved herein.
The issue involved herein is whether or not petitioner was advised in riting, as required by Rule 39 of the Agreement, of the charges filed against. m in regard to an alleged violation of Rule 810 of the Agreement.
The facts in dispute are that Claimant asked Carrier for a 30 day leave of absence, two weeks of which was granted by Carrier, and Claimant was also permitted to take his three weeks' vacation commencing January 1, 1966. Claimant was required to return to duty on January 24, 1966. Claimant failed to appear for duty on said date, and Carrier set February 9, 1966 as the date of his formal hearing in regard to Claimant's alleged absence from duty since January 24, 1966. Claimant failed to appear at the hearing, and Carrier went ahead without him and conducted the hearing and dismissed Claimant from Carrier's service.
The Claimant's sole contention in regard to this claim is that he did not receive notice in writing of the charge that was placed against him by Carrier and thus he was denied due process as guaranteed by Rule 39 of the Agreement.
The Carrier's position is that it complied with said Rule 39 in regard to "notice in writing" when it sent a "notice" letter by Certified Mail to Claimant's last known address, although the letter was returned to Carrier unclaimed by the post office.
The record shows that the "notice" letter was sent by Carrier by "U. S. Certified Mail, Return Receipt Requested", to Claimant, but was returned stamped "Unclaimed" and also a notation on the envelope "NL 2/3/66 903BR". The latter initials, "NL", evidently appear to be "Notice Left", which the post office normally does in cases such as this where the addressee of a Certified Letter is not at home.
We feel that Carrier complied with the "notice" requirements of Rule 3f of the Agreement when it sent the "notice" letter by Certified Mail, Returr Receipt Requested" to Claimant's last known address.
Further, the record shows that Claimant did not return to work at am time after January 24, 1966 or apprise Carrier of a reason for not so return ing to work. Therefore, if Claimant was without actual written notice of th, hearing, he cannot now complain, inasmuch as he was the one solely respon sible therefor. See Award 4753. For the aforesaid reasons, this claim wil be denied.