Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No, 9188
SECOND DIVISION
Docket No
. 8819
2-ICG-CM-' 82
The Second Division consisted of the regular members and in
addition Referee David H. Brown when award was rendered,
( Brotherhood Railway Carmen of the United States
Parties to Dispute;
( and Canada
(
{ Illinois Central Gulf Railroad Company
Dispute: Claim of Employes:
1. That under the current Agreement, Car Oiler (Provisional Mechanic) Taurus
Gates was unjustly suspended from the service of the Illinois Central Gulf
Railroad for a period of thirty (30) days beginning Saturday, September :LS,
1979 through and including October 14, 1979 as results of investigation
held on Friday, August 31, 1979.
2. That accordingly, the Illinois Central Gulf Railroad be ordered to;
(a) Compensate Car Oiler (Provisional Mechanic) Tames Gates for all tiny
lost beginning an Saturday, September 15, 1979 including any and all overtime he would have been entitled to up to and including October 14, 1979
which consists of twenty-two (22) working days,
(b) Compensate Car Oiler (Provisional Mechanic) Tarsus Gates for three
( 3) additional days, including any and all over-time account being held out
of service prior to the investigation without justification.
(c) Compensate Car Oiler (Provisional Mechanic) Taurus Gates for a total
of twenty-five (25) days including any and all over-time he would have
enjoyed had he not been suspended from service for thirty (30) calendar
days.
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 August 28, 1979, Claimant Gates was notified to appear at an investigation
on Friday, August 31, 1979, to determine whether he was absent without proper
authority on August 21 and 22, 1979. The investigation was held as scheduled, and
we summarize the evidence adduced therein.
Car Oiler (Provisional Mechanic) Gates had been employed by the Illinois Central
Gulf Railroad for a period of approximately six (6) and one-half
(2)
years. At
the time of the incident giving rise to this claim, Claimant was employed by the
.. ..
Form 1 Award No, 9188
Page 2 Docket No. 8819
2-ICG-CM-182
Carrier an the 7:00 AM to 3;00 PM shift with regular working days Saturday
through Wednesday, rest days, Thursday and Friday.
For several days during the month of August, 1979, Claimant was under the care
of Carrier's local physician, Dr. Charles R. Frazer, and subsequently missed work on
various occasions due to his illness. Claimant had been prescribed a certain type
of medication which taken caused drowsiness for a considerable number of hours.
Claimant had been on medication for several months prior to August, 1979, and
had lost time during those months also. Thus, Carrier was aware of the medication
that the Claimant was taking and the side effects it produced,
The controlling rule is Rule 23, which reads as follows;
"No employee shall absent himself from work for any cause
without first obtaining permission from his foreman if
possible, except in case of sickness, when he shall notify
his foreman as soon as possible."
Company records reflected that Claimant was absent from August 15, 1979
through August 27, 1979; however, he was charged only in connection with the two
days; Tuesday, August 21, and Wednesday, August 22, Carrier took the position that
Claimant at no time requested to be marked off sick or otherwise indicated his illness
prior to his return an August 25 with a doctor's certificate. Claimant testified
as follows: _
"Q. Mr. Gates, did you have permission to be off work on August
21st and 22nd?
A, I called Norvell on the 18th. He asked if I would be off the
next day and I told him that I needed to be off two or three
days since I was on this medication.
Q, When you say Norvell, are you talking about Mr. Green?
A, Yes, sir.
Q, You had permission. to be absent on the 18th?
A, Yes, sir.
Q, Were you, in any ways incapacitated as to be unable to call
is on August 21st and 22nd?
A, Yes sir. I took my medication early in the morning. Since
May I have been going to Doctor Frazer who is a company doctor.
I have had several prescriptions and all of them do about the
same thing. They make me drowsy and give a feeling of
depression,"
Assistant General Car Foreman Norvell Green directly contradicted Claimant,
swearing that Claimant did not contact him on August 18 or otherwise to advise that
he would be absent because of illness on airy date thereafter.
Thus, the issue is basically one of credibility of witnesses.
Form I
Page 3
Award No, 9188
Docket No. 8819
2-ICG-CM-'82
Under Rule 23 Claimant had the duty to notify Mr. Green of his illness "as soon
as possible". Claimant does not deny that he was able on or prior to August 18 to
advise Foreman Green of his intention to be on his medication which rendered him
unfit for duty; therefore, Carrier was justified in holding him accountable for
not notifying Mr. Green in compliance with Rule 23.
We have carefully examined the record of the investigation and find neither
procedural nor substantive error. As to the propriety of the disciplinary action
by Carrier,
r3r.
Gates, prior to this occasion, had received eight letters of warning
for absenteeism. Under the circumstances we hold the discipline to be reasonable:.
We further hold that Carrier was justified in holding Mr. Gates out of service
from August 25 to August 28 because he did not present a properly completed medical
for until such latter date.
A W
A R D
Claim denied.
Attest; Acting Executive Secretary
National Railroad Adjustment Board
By
.~' ~-""~s^~..`
...._...r'~.·''~':~..s°.r-i`~.a..'
o~emarie Brasch - Administrative Assistant
Dated ~t Chicago, Illinois, this 22nd day of July, 1982.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Second Division