Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9497
SECOND DIVISION Docket No.
9665
2-SPT-FO-183
The Second Division consisted of the regular members and in
addition Referee Francis M. Mulligan when award was rendered.
( International Brotherhood of Firemen and Oilers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That in violation of the current agreement, Firemen and Oiler D. H.
Richardson was unjustly dismissed from the service of the Carrier without
a fair and proper formal hearing.
2. That accordingly the Carrier be ordered to make the aforementioned
D. H. Richardson whole by restoring him to Carrier's service with
seniority rights unimpaired, plus restoration of all holiday, vacation.,
health and welfare benefits and all other rights, benefits and/or
privileges that he is entitled to under rules, agreements customs or
law, and compensated for all lost wages plus
6%o
annual interest on
all such 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.
D. H. Richardson, the Claimant, entered Carrier's service on May
3, 1977
as a laborer at Carrier's Los Angeles Locomotive Maintenance Plant. He continued
employment until April
15, 1978.
On April
15, 1978,
Claimant claims that he
sustained an injury while on duty. Subsequent thereto, he was released by his
treating physician to return to duty on February
7, 1979
with minor restrictions
on his activities. Claimant was sent notice on September 10,
1980
terminating
his service for absenting himself from his employment without authority in violation
of Carrier Rule
810
and in accordance with Rule
33
(b) of the Collective Bargaining
Agreement. There is no evidence in the record that Claimant attempted to contact
the Carrier at anytime after February
7, 1979
up to and through the time he was
discharged on September 10,
1980.
Claimant appeals on the ground that he was not
afforded a just and impartial hearing. Carrier's position is based on Rule 810
of the General Rules and Regulations which reads in pertinent parts, as follows:
"Employees must ... not aby~ent themselves from their employment
without proper authority.
Form 1
Page 2
Award No. 9497
Docket No. 9665
2-SPT-FO-'83
Carrier also bases its decision on Rule 33(b) of the Collective Bargaining
Agreement which reads in pertinent parts, as follows:
"... Employees who are absent from duty without authority in
excess of ten (10) days, without good and sufficient reason
which must be furnished within fifteen (15) days of the date
such absence begins in which event their employe relationship
may be terminated without a hearing."
In this instance, the Collective Bargaining Agreement does not require a hearing.
Claimant never contacted the Carrier from the date he was discharged from his
treating physician until the date he received the notice of termination. Many
multiples of ten (10) days occurred within that time frame. Carrier claims that
it attempted to contact Claimant, but these efforts were to no avail. The letter
of termination was actually unclaimed by the Claimant. It was finally returned
to the Carrier on October 29, 1980.
Even if Mr. Richardson was still suffering effects of his injury, he should
have protected himself by extending his medical leave by revisiting his physician
and having his physician communicate with the company physician or at least do
something to show that he was still medically distressed: Nothing in the-record
indicates that this was the case.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ByL~
R
semarie Brasch - Administrative Assistant
Dated 7at Chicago, Illinois, this 25th day of May, 1983.