Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9572
SECOND DIVISION Docket No. 9797
2-NRPC-EW-'83
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendexsd.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That under the current Agreement, the National Railroad Passenger
Corporation (Amtrak) unjustly dismissed Electrician Vincent Mata from
service effective December 7, 1979.
2. That accordingly, the carrier be ordered to restore Electrician
Vincent Mata to service with seniority unimpaired and with all pay.due
him from the first day he was held out of service until the day he is
returned to service, at the applicable Electricians' rate of pay for
each day he has been improperly held from service; with all benefits
due
him under the group hospital and life insurance policies for the
aforementioned period; all railroad retirement benefits due him,
including unemployment and sickness benefits for the aforementioned
period; all vacation and holiday benefits due him under the current
vacation and-holiday agreements for the aforementioned period; and all
other benefits that would normally have accrued to him had he been
working in the aforementioned period in order to make him whole.
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.
The Claimant, Vincent Mata, was employed as an electrician at the Carrier's
14th Street facility in Chicago, Illinois. The record shows his last work day
was October 25, 1979. By letter of December 7, 1979, he was dismissed from the
service under Rule
28
- Unauthorized Absence.
The Organization claims it was improper to consider the Claimant as havirg
resigned under Rule
28
('a) because he furnished the Carrier with evidence of
physical incapacity to come to work to perform his work during his period of
absence.
F orm 1
Page 2
Award No. 9572
Docket No.
9797
2-NRPC-EW-'83
Rule
28
(b) provides, in part, that:
"Employees who absent themselves from work for five days without
notifying the Company shall be considered as having resigned
from the service ... unless they furnish the Company evidence of
physical incapacity as demonstrated by a release signed by a
medical doctor ..."
The Organization requests this Board to find the invoking of Rule 28 (b)
to be improper and that such a finding requires the Claimant be afforded a fair
and impartial hearing pursuant to Rule
23.
The doctor's note referred to indicated the Claimant was under Dr. Cordova's
care from November 2,
1979,
until December
9, 1979,
for abdominal pain and that
he could return to work on December 10. Singularly, this Board observes that the
period from October 26 through November 1 is not covered. We also note the
Claimant did not notify his supervisor or any other Carrier authority that he
was sick during the period October 26 through December
7, 1979.
Accordingly, we
find no basis in this record to
conclude Claimant
was disabled to the extent it
prevented his contacting the Carrier. Furthermore, the record is void of any
information covering the period October 26 through November 1, a period of time
sufficient for Rule 28 (b) to take effect.
This Board finds Rule 28 (b) to be self-involving and does not result in the
imposition of discipline. This
conclusion is
consistent with prior Board holdings
which involved self-invoking rules. Therefore, there is no need for a hearing.
In conclusion, the Carrier did not violate the agreement when it applied Rule
28 (b) nor was the Claimant wrongfully deprived of a hearing.
A WAR D
Claim denied.
Attest: Acting Executive Secretary
National Railroad AdJjustment Board
NATIONAL RAIIItOAD ADJUSTMENT BOARD
By Order of Second Division
o~rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 13th day of July, 1983.