Form 1 NATIONAL RAILROAD ADJITSTMEM BOARD Award No.
8362
SECOM DIVISION Docket No.
7957
2-NRFC-FO-180
The Second Division consisted of the regular members and in
addition Referee Wesley A. Wildman when award was rendered,
( System Federation No.
97,
Railway Employes'
Department,
A. F . of L. C . I. 0.
Parties to Dispute:. ~ (Firemen & Oilers)
(
( National Railroad Passenger Corporation
Dispute: Claim of Employes:_
(1) That Amtrak erred and violated the contractual rights of Robert J.
White, when they removed him frcan service on August
29, 1977,
in letter
dated August
25, 1977.
(2)
That, therefore, Mr. White be returned to service with all rights,
privileges and benefits restored.
(3)
That he be made whole for all health and welfare benefits, pension
benefits, unemployment and sickness benefits and any other benefits
he mould have earned had he not been removed frarn service,
(4)
Further, that he be compensated for all lost time, including overtime
and holiday pay plus
6%
annual interest on all lost wages and that
such lost time be counted as vacation qualifying time.
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,
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 August 2g,
177,
without a formal investigation and hearings Carrier
delivered to Claimant a letter notifying him of his termination under Rule
30(b)
of the Agreement which states in part:
"Employees who absent themselves from work for five days
without notifying the CcmparXy shall be considered as having
resigned from the service ... unless they furnish the
Company evidence of physical incapacity ... or (indicate)
that circumstances beyond their control prevented such
notification."
Form l Award No. 8362
Page 2 Docket No. 7957
2-NRFC-FO-'80
Carrier asserts that resignation or a constructive quit under Rule 30(b)
is voluntarily and unilaterally self-executing by the employee. It follows
frown this, they argue, that frown the moment Rule 30(b ) becomes operative the
employee is no longer covered by the contract and thus is not entitled to any
of the procedural guarantees attendant upon discipline or discharge. Thus,
Claimant was not granted an investigation and hearing as otherwise normally
provided for in the Agreement between the parties.
On September 26, 1977, the Organization informed the Carrier, in writing,
and well within the time limits specified in the Agreement for such notification,
that the Carrier had violated the contract by removing Claimant from service
under Rule 30(b). The Organization asserted that Claimant was legitimately
absent under Rule 21 of the Agreement providing for funeral leave. Claimant
maintains that he requested permission to be absent frown work to attend the
funeral of his brother, and that upon being denied leave permission by his
foreman, he absented himself frown work none the less, but only after having
notified Carrier of his whereabouts.
Regardless of the length of time the Claimant was off the job, and whether
or not the leave taking by Claimant was legitimate in any respect under the
rules of the Agreement, the fact that Claimant and Organization appealed under
Rule 25 of the contract triggered, in our estimation, Claimant's right to an
investigation and hearing. Had such taken place, it might then have been possible
to determine with soma precision the legitimacy of claimant's absenting himself
without permission and/or whether discipline for this act might or might not
have been in order.
There are circumstances under which a clause in a collective bargaining
agreement concerning unnotified absence becomes self-executing by the action
of the absent employee so as to effect immediate termination of service. Here,
though, where there has been an issue raised as to whether notice of absence
was given to the employee and as to whether or not leave should have been
granted, there is certainly sufficient question as to the existence of a
"constructive quit" to require subsequent investigation. Certainly, protections
of the contract concerning investigation and hearing, the right to avail oneself
of the grievance procedure, etc., are applicable.
To make a very long story appropriate short for our purposes here, it was
not until the 21st of February, 1978, that Carrier, in implied recognition of
the fact that it had perhaps erred in its handling of various phases of this
case, unambiguously offered reinstatement to Claimant without prejudice to
Claimant's right to appeal the issue of his pay loss for the period from the end
of his leave to the February 21st 1978 date.
Claimant evidently refused this invitation to return to work and, in our
judgment, was clearly in error in doing so. Had the Claimant returned, he and
his organization could have, of course, pursued the issue of back-pay through the
normal channels of the grievance procedure.
Form 1
Page
3
Award No. 8362
Docket No.
7957
2-NRPC-FO-t80
Thus, while we find it appropriate to order reinstatement and back-pay
for the period Claimant would have worked following his leave and until the
February 21st reinstatement offer of Carrier, the Carrier's liability fox back
pay in this case clearly does not extend beyond their offer to Claimant to
return to work with the accompanying implied certainty that arty disagreement as
to whether back-pay was appropriate or not could be settled through the
appropriate channels of the grievance procedure.
A W A R D
Claim sustained in part and denied in part as per findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second -Division
Attest: Executive Secretary
National Railroad Adjustment Board
By y
Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of June, 19$0.