Form 1 NATIONAL RAILROAD ADJUSTRTNT BOARD Award No. 8085
SECOND DIVISION Docket No. 7926-I
2-r&rr-FO-' 79

The Second Division consisted of the regular members and in addition Referee Abraham Weiss when award eras rendered,

( System Federation No. 91, Railway Employes'

( Department, A. I''. of T,, - C. I. 0.

Parties to Dispute: ( (Firemen & Oilers)

~ Louisville and Nashville Railroad Company

Dispute: Claim of Employes:

1. That under the Current and Contro?_13.zig Agreement Service Attendant

M, J. Brian ~,~,s unjustly dismissed from the service: of the INN

Railroad Corina,n<;r on June b, 1977 by I%ic. W, Z. Eltion, Master

Mechanic W'itrG"a'L. the bene:~':i.t of a, fbxnal investi gation as prn;uided

for by the Controlling Agreezrent,

2. That aocax~d5.re1'~;r. Sex"vice Attendant M.u J. Brian be restored to his

a.ss:i r;uzrient at ;,'~ra-vjberry Yards vri_'t;h aZ.L seniority rights una_:npaired,

vacation, 12euluh and welfare, hGSp:i'ca.l and life insurance be paid

arid conpan: ated for a;.h. 1 ost tiian~ effective June 8, 1877 thr ouch

July 14, lgTls both dates inclusive at- the pro-rata rate of pay.

Findings:

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

The carrier or ca>rriers 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, 193.

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

Parties to said dispute waived right of appearance at hearing thereon.

On June 8, 19779 the claimant's seniority was terminated under Rule 2:L(b ) which states

"21(b) An employe absent on leave who engages in other employment without the approval of the General Chairman and the Director of Personnel automatically severs his relations with the company,"

The claimant was reinstated July 15, subsequently charged with what might be characterized as absenteeism and dismissed. The dismissal is a separate matter and is being handled by the Board in another case. The case before us only deals with time lost between June 8 and July 14.
Form 1 Award No. 8085
Page 2 Docket No. 7826-I
2-z,8N-FO-' 79

The organization argues that the claimant must be given a hearing before terminating his seniority under a rule such as 21(b). However, assuming arg<zendo that Rule 21(b) a-Oplies, we agree with the Carrier that a hearing is not generally necessary. The Board has held many times that termination under rules such as Rule 21(b), which call for automatic severance of seniority, do not require disciplinary hearings. As was stated in Third Division Award 27_3 (Wallace):

"The Carrier maintains the disciplinary rule has no application here by virtue of Petitioner's automatic severance under Rule 23. A careful review of the awards compels the o.onclus:ian that Third Division Award 12993 (Hall) has application here. Similarly, the at~rard.·. in other Divisions reach the same resu7.t: Fourth Division AwLards 2832 (`v,Testcn) and 3:1.35 (O'Brien); Second Division Al_m rd 707.7 (3;:i.schen). tl,.-VTaL 6801 (0'Frien) of the Second D:iv:ision., a case distinguishable on its facts, appropriately stated the rule:

`~lhile the conclusion reached herein may appear harsh, it should be noted that F;iile 18 is a self -execut:i.ng rule providing for automatic loss of sen:i.ority. , . We are left no alternative than to apply the Rule as written and find that Claimant has forfeited his seniority,'

On this basis Petitioner forfeited her seniority under Rule 23(g) and Carrier did not violate the Agreement,"

However, there is one serious defect in the Carrier's position. It has not been shown that the claimant was "absent on leave" within the meaning of the phrase used in Rule 21. The claimant was not absent on leave or on a leave of absence within the meaning of Rule 21. A leave of absence as used in Rule 21 refers to an absence which is specifically requested by the employee and formally granted by the Carrier. We are not prepared to say, however, that it must be granted in writing. The Carrier has presented no evidence that the claimant ever was granted a leave of absence under Rule 21. Before Rule 21(b) can apply a leave would have to have been granted under the general provisions of Rule 21. This was not done. The claimant was not on a leave of absence, but simply failed to protect his position on various dates. Considering that the claimant had not been granted a leave of absence under Rule 21, it would have been proper to proceed under the discipline rule, if Carrier had problems with claimant's dependability. Had he been granted a leave under Rule 21 and it was further sho°:m he was engaged "in other employment" without the required approval specified in Rule 21(b), we would have agreed with the Carrier and a hearing would not have been necessary.

Under the facts and circumstances described hereinabove, we are compelled to sustain the claim.
Foam 1 Avrard No. 8685
page 3 Docket No. 7826-I
2-h&i.V-FO-' 79

A W A R D

Claim sustained.

NATIONAL RI':TIROAD ADJUSTI= BOARD

By order of Second Division

Attest: Executive Secretary
1~Ta,tional Railroad Adjustment Board

_ r - 1 __-_ ---. "'.

l

,.._.. `.r^. ~,r.."

-er aiie Bra.sch..~Adrlinistrative As-snt

Date at Chicago, Illinois, this 12th clay of Ser~teln'bexs 179.