Form 1 NATIONAL RAI?ROAD ADJUSTMENT BOARD Award No. 8456
SECOND DIVISION Docket No.
84+9
2-WT-FO-'8o
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Brotherhood of Firemen & Oilers
(
Parties to Dispute:
(
( Washington Terminal Company
Dispute: Claim of Employes:
1. ,That in violation of the current agreement, Laborer Curtis Haile was
unjustly dismissed from the service of the Carrier on September
18,
1978.
2. That accordingly the Carrier be ordered to make the aforementioned
Curtis Haile whole by restoring him to the Carrier's service with
seniority rights unimpaired, plus restoration of all holiday, vacation,
health and welfare benefits, pass privileges and all other rights,
benefits and/or privileges that he is entitled to under rules, agreements,
custom or law, and compensated for all lost wages.
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.
Parties to said dispute waived right of appearance at hearing thereon.
On September 18, 1978 the Carrier sent the following letter to the Claimant
by certified mail, return receipt requested:
"Company records indicate that you reported off duty account
of illness of July 1, 1978.
Our Medical Examiner wrote to you on July 7, 1978, requesting
that you furnish evidence of your disability and this you have
failed to do.
My letters of August 4, 1978 and August 29, 1978 also requested
you to furnish evidence of your disability to our Medical
Director, which you have failed to do.
Form 1 Award No.
8455
Page
2
Docket No.
8449
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"In accordance with provisions of Rule
4.
of the current working
agreement between The Washington Terminal Company and the
International Brotherhood of Firemen and Oilers, this will
advise that, effective this date, you are hereby dismissed
and dropped from the rolls and seniority roster of The
Washington Terminal Company for absenting yourself without
permission."
This letter was sent to the Claimant's address of record and was returned
by the Postal Service as "Unclaimed", as were the letters of August 4 and August:
29, 1978.
The Medical Examiner's letter of July
7, 1978
was not returned to the:
Carrier, so a presumption of its delivery may be made.
The underlying question in this dispute is whether the Claimant was dismissed
from service, as alleged by the Organization and as indicated in some of the
carrier's correspondence during the processing of the dispute; or whether he
voluntarily relinquished his employment under the provision of Rule
4.
If Claimant was dismissed, he was -- as claimed by the Organization -Improperly denied an investigative hearing as provided in Rule 32. The Carrier
argues, however, that there was not dismissal but rather that the Claimant
terminated his own employment.
Rule 4 reads as follows:
"(a) An employe who is absent from work for any cause and has
not arranged for a definite time to resume duty, will not be
permitted to work except on approval of ranking officer,
unless he gives his foreman notice of his intention to report
for duty at least one hour before the expiration of the
regular quitting time of the shift on
which he
is employed,
on the day previous to the day on which he intends to report
for work.
(b) When unable to comply with the above provisions, the
employe must give a reasonable excuse for his inability to
do so, to the ranking officer, before being allowed to
return to work.
(c) In case an employe is unavoidably kept away from work on
account of sickness, or for any other good cause, he shall
notify his foreman as early as possible, either by telephone,
or messenger, or United States Mail. Employes assenting
themselves for five days without notifying the Management
shall be considered out of service and dropped from the rolls
and seniority roster, unless a justifiable reason can be
shown as to why notice was not given or sent."
The Organization argues that the Claimant reported off sick on July 1,
1978
and thus complied with Rule
4
(c), in that he gave notice to the Carrier. Such
notice of a day's absence for illness obviously cannot justify an indefinite
Form 1
Page
3
Award No.
8456
Docket No.
8449
2-WT-FO-'
80
failure by an employe to report on his status. The Carrier states, without
contradiction, that it has received no information from the Claimant, either
prior to the letter of September
18, 1978
or up to the time the dispute was
submitted to the Board.
Rule
4
(c) goes on to provide an orderly procedure for handling such
matters. The form letter sent to the Claimant on July
7, 1978,
requesting
verification of the nature and extent of illness by the employe's own physician
is not an unreasonable consequence of the provisions of Rule
4.
Even though
notice of illness was given by the Claimant on July 1, both Rule
4
and ordinary
procedure dictate that an employe has an obligation to advise the Carrier of hiss
condition.
Rule
4
(c) provides a self-effectuating remedy for such failure to meet the:
reporting obligation: "Employes absenting themselves for five days without
notifying the Management shall be considered out of service and dropped from the:
roles and seniority roster."
In this instance, even though he reported off for July 1, he was given at
least three opportunities to explain his extended absence thereafter. The fact
that letters addressed to him at his last known address were unclaimed cannot be:
shown to negate the Carrier's attempts to communicate with him. More significantly,
no word was received even after the claim was filed and processed.
There is no showing here that the Claimant was dismissed from service.
He effectuated his own termination.
A W A R D
Claim denied:
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
oF
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 1st day of October,
1980.