Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8694
SECOND DIVISION Docket No. 8599
2-CR-FO-181
The Second Division consisted of the regular members and in
addition Referee John B. hsRocco when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim o f Employes
M. Marullo, Relief Stationary Engineer, Cos Cob Power Plant, Cos Cob,
Connecticut, Consolidated Rail Corporation, unjustly dismissed for unauthorized absence since March 20, 1978.
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 habor 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.
Claimant, a relief stationary engineer at the carrier's Cos Cob Power Plant,
was discharged on May 30, 1978 for a continuous unauthorized absence since March
20, 1978. The claimant failed to appear at the investigation held on May 23,
1978.
On March 20 and 21, 1978, the claimant reported to the carrier that he could
not work due to illness. On March 22, 1978, the claimant informed the carrier that
he would not report to work, until further notice, alleging he was ill. After
the Chief Stationary Engineer and the Mechanical Supervisor observed claimant at
local shopping areas, the Chief Stationary Engineer sent a letter dated May 1,
1978 to the claimant, by certified mail, instructing the claimant either to substantiate his purported continuing illness with appropriate medical evidence or to
return to work by May 11, 1978. The claimant, who received the letter, did not
comply with either instruction. On May 12, 1978, the carrier sent a notice of
investigation, by certified mail, to the claimant. The post office made several
attempts to deliver the notice. Through no fault of the carrier or the postal
system, the claimant did not actually receive the notice until after the investigation had been held.
The organization initially contends that because the claimant never received
actual notice of the May 23, 1978 investigation he was deprived of his right to a
fair and impartial hearing. We disagree. Rule 20(d) imposes an obligation on
the carrier to provide the accused employe with reasonable advance written notice.
The carrier is not the guarantor that the claimant will receive actual notice.
Sending a notice by certified mail to claimant's residence is reasonable. Further-
Form 1
Page 2
Award No. 8694
Docket No. 8599
2-CR-FO-'81
more, if the claimant had been more diligent in retrieving his mail from the post
office, he would have known about the investigation. He is estopped from blaming
the carrier for his own dilatory conduct.
On the merits, there is substantial, indeed overwhelming, evidence that
claimant was continuously absent since March 22, 1978 without proper authority in
violation of Rule 13. The organization contends that the claimant was absent for
good cause, i.e. illness. Inexplicably, the claimant forwent two opportunities
to demonstrate that he was genuinely ill. He ignored both the May 1, 1978 letter
and the notice of hearing. Belatedly, the organization has presented this Board
with an invoice for medical services from claimant's physician showing treatment
for bursitis. While we are precluded from reviewing evidence which was not offered
at the hearing or on the property, we note that the invoice lists only one medical
examination and that occurred on March
16,
1978. If the claimant's illness was
both continuing and incapacitating, there should be invoices for examinations
after March 22, 1978. Yet, such invoices were not presented during the
investigation.
The carrier has acted prudently in all respects in tkis case. It only
questioned the claimant's absence after he was observed at the shopping areas in
apparently good health. On May 1, 1978, the carrier provided claimant with a
chance to justify his absence. After forty days of continued absence without
receiving any substantive excuse from the claimant, it was reasonable for the
carrier to dismiss the claimant.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
semarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 29th day of April, 1981.