Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7554
 SECOND DIVISION Docket No. 741+0
 2-ICG-EW-'78



Parties to Dispute: ( (Electrical Workers)


Dispute: Claim of Employes:





Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

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

In May of 1975, the Claimant requested a leave of absence to work at a Post Office; his request was marked "non approved" under date of May 19, 1975. The Claimant was examined by Carrier physician on June 13, 1975, the results of which were reported to the Carrier as follows:
 Form 1 Award No. 7554
 Page 2 Docket No. 7440
 2-IC G-EW-'78
 "Examination of Jimmy James, Electrician, Rt. 1, Box 83A,
 Walls, Mississippi, 6-13-75 shows that he is not able to
 carry on his regular work.
 I recommend 30 days leave of absence, from 6-13-75."

 A "Request for Leave of Absence" (Form No. 1542) was executed approving his absence from June 19, 1975 to July 18, 1975. The Carrier asserts that by letter, thereafter, the Carrier informed the Claimant as follows:







(It is noted, however, that the letter was undated and the record does not reflect when the Carrier claims to have sent it or if the Claimant admits to receiving it.)

 The Carrier contacted the Post Office at Walls, Mississippi, on July 8, 1]75, to verify earlier advice that the Claimant was working as a rural letter carrier. By letter of July 11, 1975, the Postmaster at Walls advised the following:




Form l Award No. 7554
 Page 3 Docket No. 7440
 2-ICG-EW-'78
 "were employed and worked as a rural mail carrier out of
 Walls, Mississippi from July 1, 1975 through July 11,
 1975.
 Unless you can prove otherwise, this is to inform you
 you have lost your seniority with the Illinois Central
 Gulf Railroad. Therefore, your services with the
 Illinois Central Gulf Railroad are terminated, in
 accordance with Rule 22."
seniority was terminated effective July 15, 1975. In the ensuing months
 the Organization processed a grievance according to Rule 27 of the Agreement,
 which establishes, inter alia, 60 day response periods for appeals. By
 letter dated November l7, 1975, the Organization appealed an earlier denial
 by the Carrier to Master Mechanic Weber. By letter dated February 3, 1976,
 the Organization (via Local Chairman Gonzales) advised the Carrier (in part)
 as follows:




The Carrier by letter from Master Mechanic Weber on February 12, 1976, advised as follows:

(The January 12, 1976 letter denied the Organization's appeal on behalf of the Claimant.)

 The Organization claims that the Carrier failed to comply with Rule 37 insofar as time limits and the grievance is therefore allowed. As to the merits, it contends that the Claimant was not on a leave of absence,
 Form 1 Award No. 7554
 page 4 Docket No. 7440
 2-ICG-EW-'78

 but rather was off duty due to sickness. The Organization points to the language of the "Interpretation of Rule 22 (Effective 7-1-1963)" -- which is incorporated into the Agreement -- for its support of differentiation of the statuses of ABSENCE FROM WORK (title of Rule 22):

Thus, the Organization asserts, the proscription against other work, which relates only to leaves of absence, as such, does not apply here. The Organization also contends that the Claimant had long worked as a rural carrier while maintaining his electrician's job with the Carrier, a fact well known to the Carrier. Finally, the Organization contends that the Carrier's letter of July 15, 1975, requiring the Claimant to prove he did not work as a rural carrier and the subsequent termination of him without a hearing, violates Rule 39 (DISCIPLINE), specifically the provision which requires that "No employer shall be disciplined without a fair hearing by a designated officer of the Carrier ...."

 The Carrier contends its actions were in accord with Rule 22, that the Claimant was on leave of absence, that he was forewarned against holding outside employment without proper authorization as set out in Rule 22, that he violated that proscription while on leave of absence and his seniority was terminated. The Carrier denies a violation of Article 39, contending that this was not a disciplinary action, rather that it is a loss of seniority which is automatic when a violation of Rule 22 is established; thus, there was no call for a hearing as required in Rule 39 since there was no disciplinary action taken. Insofar as the Organization's assertion that the Carrier failed to meet time limits, the Carrier contends it prepared and sent a response dated January 12, 1976; it counter-claims failure to meet time limits by contending the Organization failed to meet procedural requirements to communicate its appeal to the next highest officer within 60 days after it should have received its January 12, 1976 letter Thus, the Carrier asserts, the Organization has foregone its right to appeal.

 Insofar as the claim and counter-claim on time limits is concerned, it is obvious that either part can defeat the process of communications by merely denying receipt or refusing to respond based upon such a denial. The previous exchange of replies were in order, and there is no reason to conclude that the Carrier did not duly respond by letter dated January 12, 1976; it is equally obvious the Organization did not receive such a letter. In the same vein the Organization could hardly appeal a denial not received. When it did appeal by its March 25, 1976 letter to the Carrier's Director of Labor Relations, it was well within the 60 day limitation of receipt of the January 12 letter (resubmitted as an attachment to Master Mechanic's February 12, 1976 letter.) Both parties met the requirement of notification and neither complaint is with merit.

 A single question remains which is key to all other assertions and contentions in this case -- did the Carrier establish that the Claimant was
 Fowl 1 Award No. 7551+
 Page 5 Docket No. 7440
 2-ICG-EW-t78

 on a leave of absence? If so, the Rule 22 is clear and "self-executing"
 as cited in Second. Division Award 6801. The Organization suggests a
 distinction between sickness and leave of absence, which make them mutually
 exclusive. It seems obvious that they are not: an employee could be
 absent from work due to sickness, o r absent from work on leave of absence,
 or absent from work on leave of absence due to sickness. It would appear
 the third category of absence from work existed here. By the Organization's
 own account the Claimant's inability to work was due to a need to abstain
 from his work environment for a while. The doctor's statement to the
 Carrier cited leave of absence, as such. A reading of the record as a
 whole supports the Carrier's contention that the Claimant knew he was
 without authorization to take a leave of absence for purposes of working
 at the Post Office. He could not escape this proscription by pointing to
 such work as "emergency" as defined by the Postmaster. He was better
 advised to seek approval in advance of such work, if there was any doubt.
 The Carrier was not obliged to convene a hearing under Article 37, given
 the unique nature of this "self-executing" provision. While certain factors
 of the Carrier's documentation leave something to be desired, this Board
 finds it was authorized to terminate the seniority of the Claimant.




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By

        ' ~r , i

      osemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 16th day of June, 1978.