Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
92$4
SECOND DIVISION Docket No. 8632
2-NRPC-EW-182
The Second Division consisted of the regular members and in
addition Referee George E. Larney when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
(1) That the Carrier erred and violated the contractual rights of Mr.
Leonard Jackson when they invoked the provisions of Rule 28 (b) of the
IBEW-Amtrak Agreement and terminated him on May 30,
1978.
(2) That the Carrier further erred and violated the contractual rights of
Ms. Leonard Jackson by refusing to allow him to return to work on
August 23,
1978,
in violation of Rule 28(b) of the IBEW-Amtrak Agreement.
(3) That, therefore, he be returned to service with seniority and all other
rights, benefits and privileges restored, and
(4) That he be compensated for all time lost including holiday and overtime
pay, and
(5)
That he be made whole for health and welfare benefits, and
(6)
That he be made whole for all vacation rights, and
(7) That he be made whole for pension benefits, unemployment and sickness
insurance, and
(8) That he be made whole for any and all other benefits, not specifically
mentioned herein, that he would have received or would have earned had
he not been withheld from service.
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.
F orm 1 Award No. 9284
Page 2 Docket No. 8632
2-NRPC-EW-182
At the time of his removal from service, effective may 30, 1978, Claimant,
Leonard Jackson, was holding the position of Electrician at Carrier's 21st Street
Diesel Maintenance Facility in Chicago, Illinois. The record evidence reflects that
on date of may 17, 1978, Claimant contacted Facility Manager, W. Rodgers, and
reported off ill. On the following day, May 18, 1978, Claimant sought medical
assistance from a Doctor D. L. Parris, who diagnosed Claimant as suffering from
both Pneumonitis and Hemorrhoids. On date of May 22, 1978, Claimant called
Carrier and spoke with Supervisor Tracy, wherein, according to the Organization,
the Claimant related that he was under doctor's care and did not know when he
would be back to work. Carrier acknowledges the Claimant's call on May 22, 1978,
but denies he apprised Tracy he was under physician's care and would be off work
for an indeterminate period of time. According to the Carrier, Tracy instructed
the Claimant during this telephone conversation to call in on a daily basis to
report off ill. Claimant, according to the Carrier, disregarded this instruction
and by doing so caused him to effect his own resignation pursuant to Rule 28 of
the controlling Agreement effective September 1, 1975. Rule 28 (a) and (b) reads
in whole as follows:
"tVAUTHORIZED ABSENCE
(a) Employes shall not absent themselves from their
assigned positions for any cause without first obtaining
permission from their supervisor. In cases of sickness,
emergencies or when the supervisor cannot be located,
they shall notify their supervisor or another person in
authority as soon as possible.
(b) Employees who absent themselves from work for five
days without notifying the Company shall be considered
as having resigned from the service and will be removed
from the seniority roster unless they furnish the Company
with evidence of physical incapacity as demonstrated by
a release signed by a medical doctor or that circumstances
beyond their control prevented such notification."
The record evidence reflects that by letter dated may 30, 1978 and sent by
certified mail, return receipt requested, Carrier notified Claimant he was in
violation of both Rule 28 and the Diesel Shop's Attendance Policy, and thereby
had been terminated from all capacities of its employ. The Attendance Policy
referred to in the letter reads as follows:
"An employee intending to be absent from his or her tour
of duty must report same to a supervisor at their facility
at least one hour prior to that tour of duty affected, giving
reason for intended absence and length of time to be absent."
The record evidence further reflects that this letter directed to Claimant's
last known address was returned as undeliverable and thereby Claimant was not
knowledgeable as to Carrier's action. When Claimant learned of his termination
through a friend on date of
July
17, 1978, he immediately presented himself to
Superintendent Schlax an the same date to discuss the matter. Schlax advised
the Claimant to see Facility Manager Rodgers about the problem. The Carrier
Form 1 Award No.
9284
Page
3
Docket No. 8632
2-NRPC-EW-' 82
maintains Schlax meant the Claimant should see Rodgers that day while the
Organization contends his advice pertained to the time the Claimant was ready to
return to work.
The Organization maintains the Claimant complied with the requirements set
forth in Rule 28(a) and by doing so was under no obligation to make notification
pursuant to Rule 28(b). Notwithstanding this contention, the Organization argues
the Claimant did nevertheless comply with Rule 28(b) when he contacted Supervisor
Tracy on date of May 22, 1978. Furthermore, Claimant did, the Organization notes,
furnish Carrier with evidence of physical incapacity when he presented a medical
release form signed by his physician. This medical form, contends the Organization,
further meets the requirements set forth in Rule 28(b). The Organization maintains
the Claimant was only obligated to comply with the relevant contractual requirements
as set forth in Rule 28(a) and was not bound to adhere either to the Carrier's
unilateral Attendance
Policy
requirements nor to the verbal directive issued by
Tracy that he telephone in on a daily basis. For all these reasons, the Organization
asserts, the Claimant was wrongfully terminated from service.
The Carrier argues the Claimant was only cited for violation of past (b)
of Rule 28 and not part (a). Carrier contends Claimant did, in fact, absent himself
from work for five
(5)
days, to-wit, May 23,
24, 25,
26 and 27, without notification,
thereby effecting his own resignation. Carrier further argues that the physical
incapacity referred to in Rule 28(b) has to do with an inability to make proper
notification within the allotted five
(5)
days rather than with the inability to
physically perform the duties of the position. Carrier also argues that the directive
issued to Claimant on May 22, 1978 to call in and report off work on a daily basis
was indeed proper and not a violation of Rule 28(b) of the controlling Agreement as
so alleged by the Organization. In farther support of its contention on this latter
point, Carrier argues such a directive was meant to guard against excessive
absenteeism on the past of the Claimant as he had established a past history of
being absent. As further proof the Claimant was in need of such guidance, the
Carrier notes Claimant was released for work by his physician beginning July 17,
1978, but in fact did not actually report back to work until August 18, 1978.
Upon a review of the entire record, we find the Claimant did comply with the
requirements of Rule 28(b) when he contacted the Carrier on date of May 22, 1978.
Therefore, the Carrier's action of terminating the Claimant on Mary
30,
1978, ways
both wrongful and premature. However, in view of the medical documentation showing
the Claimant was released to return to work on July 17, 1978, and the fact that he
did not present himself for work until August 18, 1978, send further that within
this approximate thirty
(30)
day period he made no notification to Carrier, we find
Claimant in this period violated Rule 28(b) and effected his own termination. Under
all the prevailing circumstances, we find Carrier erred in terminating the Claimant
on May
30,
1978, and therefore is liable to make the Claimant whole for all
applicable monetary benefits between the dates of May 23, 1978 and July 17, 1978.
Thereafter, the Carrier is free of any liability as Claimant failed to meet the
requirements of Rule 28(b) thereby effecting his own resignation five
(5) days
after July 17, 1978, the date he was released to return to work.
Form 1
Page 4
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By.
Award No. 9284
Docket No. 8632
2-NRFC -EW-' 82
AW AR D
Claim sustained in part and denied in part as per Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
se arie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th
day
of
August,
1982.