Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
837+
SECO1M DIVISION Docket No. 8017
2-SIRTOA-EW-180
The Second Division consisted of the regular members and in
addition Referee Wesley A, Wildman when award was rendered.
( System Federation No,l, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
( The Staten Island Rapid Transit Operating Authority
Dispute: Claim of Employes:
1) That under the current Agreement, Electrician Helper Lawrence B.
Kurschner was improperly dismissed frown the service of the Carrier.
2) That accordingly., the Staten Island Rapid Transit Operating Authority
be ordered to return electrician helper Lawrence B. Kurschner to their
service with all seniority rights restored and all pay due him since
he was discharged up to the date he is returned to service, at the
applicable electricians helper rate for each working day he has been
improperly held frarn service; and all other benefits due him under the
group hospital and life insurance policies for the abovementioned
period; and, all railroad retirement benefits due him, including
unemployment insurance arid sickness benefits for the above described
period; and all other benefits that would normally accrue to him had
he been working in the above described period in order to make him
whole,
Findings:
The Second Division of the Adjustment Board, upon the whole record and a7-1.
the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispi;~te
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 were given due notice of hearing thereon.
With respect to the period of absence which is the subject of this case,
Electrical Worker Helper Kurschner, Claimant here, was first reported off sick
,on March
30, 1977.
The following day, it was duly reported to Carrier that
Claimant was undergoing an appendectomy.
Without any official subsequent notification from Claimant as to his condition
following the appendectarnq, Carrier became aware frown. a newspaper article that
Claimant was involved in an automobile accident on
may 6, 1977,
which required
the Claimant's hospitalization. During the month of July,
1977
while Claimant
was still absent from work, allegedly as a result of injuries received in the
auto accident, he made a number of visits to his place of work, chatting with
fellow employees and, evidently, on occasion, with supervision.
Form 1 Award No. 837+
Page 2 Docket No. 8017
2-GIRTOA-EW-180
Claimant, at no time subsequent to his accident having made any formal or
official representations whatsoever to Carrier regarding his condition or
estimated date of possible return to work, was specifically directed on August
3,
1977
by the supervisor of the Mechanical Department, John N. Rivellino, to provide
a doctor's statement of incapacity and a projected return-to-duty date. While
this directive was communicated verbally by telephone and not, as the Organization
claims should have been the case, by letter, Claimant does not deny receiving
the request.
What transpired subsequently involves an issue of credibility as between
Claimant and Supervisor Rivellino. Claimant asserts that several days after
August 3rd he tendered to Rivellino a certificate of disability from a physical
therapist. Rivellino flatly and categorically denied that Claimant ever offered
to him, or in fact gave to him, arms document whatsoever relating to his disability,
Without going into elaborate detail, we find that there is quite adequate support
in the record for Hearing Officer's finding in favor of Supervisor Rive7.7.ino on
this crucial credibility issue.
Subsequently, on August 26,
1977,
Carrier, claiming it had received no
response to its August 3rd directive to Claimant, took Claimant out of service.
We are brought to the essential fact on this record that Claimant, while
he appropriately notified Carrier at the outset of his initial absence, was
subsequently absent for a nearly five
(5)
month period without formal notification
to Carrier of the extent of his disability or his expected date of return to
work, and without ever making any formal request for a leave of absence. It is
true that under the circumstances reviewed above, the Carrier might easily have
initiated formal inquiries as to Claimant's status well in advance of the August
3rd date, offering one or more warnings to Claimant that failure to respond
satisfactorily to inquiries might result in termination. Also, as the
Organization asserts, the Company would have had the right under the circumstances
to demand a physical examination to be performed by Company doctors.
However, widely accepted industrial relations practice and precedent
generally, and clear inferences to be drawn from Rules 5, 18 and
19
in the
controlling agreement regarding absences from work and leave requests, establish
an affirmative obligation (absent proof of total incapacity and inability to
comrmznicate) on the part of an absent employee to make reasonable efforts to
keep the employer informed as to the course of his illness or disability and,
if necessary, to take appropriate steps to insure that the employee is protected
at the minimum by an employer acknowledged, at least de facto, leave of absence.
Claimant's failure to take any significant measures to inform his employer,
particularly after a formal request to do so, displays an indifference to the
protection of his job which, in the opinion of this Board, cannot be rewarded
by a reinstatement order.
There is substantial evidence on the record to support the findings of
the Carrier that Claimant did not meet his obligations to protect his job during
his lengthy period of absence. Finally, there is no basis for a finding by this
Board that, under the circumstances here prevailing, the imposition of the
discharge penalty was arbitrary, capricious or unnecessarily harsh.
Form 1 Award No. 837+
page
3
Docket No. 8017
2-s rRTOA-EW-t80
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By ' v
o emarie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 11th day of June, 1980.