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Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9406
SECOND DIVISION Docket No.
9342
2-NRPC-EW-183
The Second Division consisted of the regular members and in
addition Referee Edward L, Suntrup when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That the National Railroad Passenger Corporation (Amtrak) arbitrarily
and unjustly removed Electrician James Fowler from the service on
April 23,
1980
in violation of the Agreement.
2. That, accordingly, the National Railroad Passenger Corporation (Amtrak)
be ordered to reinstate James Fowler to his former position with
seniority rights unimpaired and compensated for all time lost.
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,
193+.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant, Mr. J. Fowler, entered service of the Carrier on May 1$,
1976.
By letter dated April 23,
1980
Claimant received notice that he was no longer
considered in the employment of the Carrier because of violation of Rule 28(b).
Claimant had failed to cover his assignment on April
15, 16, 17, 18
and
19, 1980
and he had allegedly failed to notify the Carrier or his whereabouts. Rule 28(b)
reads as follows:
"Employees who absent themselves from work for five days
without notifying the Company shall be considered resigned
from the service and will be removed from the seniority
roster unless they furnish the Company evidence of physical
incapacity as demonstrated by a release by a medical doctor
or that circumstances beyond their control prevented such
notification."
Form 1
Page
3
Award No.
9
Docket No.
93+2
2 -NR PC -Ew-'
83
Tae Board is mindful of the fact that in order that a Carrier might function
efficiently and effectively it must have employes who are dependable while on the
fob as well as dependable when it is a question of informing the Carrier of their
whereabouts in the event of a sickness or other type of personal emergency so
that the Carrier can reasonably carry out its management functions by means of
substitutes. Rule 28 has been negotiated by the parties to precisely handle this
latter type of eventuality and it contains qualifications to cover conditions o1:
extreme duress. The Board is not persuaded that these conditions, for reasons
stated above, have been met in the instant case and it will, therefore, deny the:
claim.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
r
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of T~larch,
1983.
Form 1 Award No.
9L06
Page 2 Docket No. 932
2-NRPC-EW-183
The record presented to this Board shows that the facts of the case are the
following: Claimant was absent from
work
from April 12 to April 28, 1980.
During that time he did not notify the Carrier of his whereabouts. On April 23,
1980 Claimant was sent notice noted above. On or about April 30,
1980
Claimant
attempted to return to work with a doctor's statement dated April 29, 1980. This
document stated that Claimant had been ill and was unable to work from April 12,
1980 to April 28, 1980. This notice also stated that Claimant "was confined to
bed, was having frequent nausea and vomiting, and was advised neither to make
(nor receive calls or visits during this period. He is now doing well and may
work. He was seen on 4-12; 4-22 and 4-25-80..."
A review of the evidence and arguments submitted to this Board in hearing
and in accompanying exhibits and submissions lead it to conclude the following.
First of all, Rule 28 is a self-invoking rule and its violation does not result
in discipline by Carrier per se but its violation results in automatic resignation
by the employe. Consistent with the above is the conclusion that neither Rule 23,
which deals with Discipline-Investigation-Appeal, nor Rule 21 which deals with
leave of absence, sick leave, etc., applies to the present case, as Organization
argues, since the Board is not here dealing with a disciplinary action, nor with
any type of leave. The sole question to be ruled on is whether Claimant himself
resigned because of violation of Rule 28 b of the controlling Agreement.
The Board finds nothing in Rule 28 to suggest that employes must notify
the Carrier each and every day of a sickness and/or because of other circumstances
beyond their control, but the Board does find Carrier position reasonable,
specifically as Rule 28 b states, that absence from work for five days without
notification implies automatic resignation unless the extraneous conditions
specified by this same Rule 28 b hold, and the Board finds that Claimant did
not pass the test of fulfilling these conditions. Rule 28 b states no more nor
less, in terms of employe obligations to the Carrier than that the employer
be notified of an absence: the Rule does not even say explicitly nor by implication
that it is incumbent upon the employe himself or herself to do this. Delegation
of this obligation to a relative or to some other person would fulfill this
Rule's requirements. From the record before this Board there is no indication
that the Claimant did this. For all practical purposes Claimant simply disappeared
on the days in question. Further, the statement from the attending physician does
not persuade the Board that the Claimant was incapable of either making the minimal
effort of notifying the Carrier himself, or of asking someone else to contact
the Carrier to provide information on his condition and whereabouts. Again, this
is all that was required by Rule 28(b) and Claimant did not do this. The doctor's
statement also says that Claimant was seen on three different dates by the doctor
when Claimant was not covering his assignment. The Board will not be so presumptuous
as the Carrier to assume that this meant that Claimant physically travelled to
see this doctor. It is possible that the doctor came to visit him. Nevertheless,
under whatever conditions the Claimant saw the doctor becomes immaterial, in the
mind of the Board, in view of the common sense observation that if Claimant could
see the doctor he could have, either himself personally, or by means of a delegate,
have notified the Carrier of his condition. Unfortunately, he made no attempt
to do this.