Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11587
SECOND DIVISION Docket No. 11441
88-2-87-2-82
The Second Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company

STATEMENT OF CLAIM:

1. That under the current Agreement, Mechanical Department Electrician J. L. Diaz was unjustly treated when he was dismissed from service on July 21, 1986, following investigation for alleged violation of portions of Rule 801 and Rule 810 of the General Rules and Regulations of the Southern Pacific Transportation Company (Western Lines).

2. That accordingly the Southern Pacific Transportation Company be
ordered to restore Electrician J. L. Diaz to service with all rights unim
paired, including service and seniority, vacation, payment of hospital and
medical insurance, group disability insurance, railroad retirement contribu
tions, and loss of wages; including interest at the rate of six percent
per annum.

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 employes 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.



On May 13, 1986, the Claimant was injured on the job. He was examined by an industrial doctor (designated by the Carrier) on May 13; the doctor concluded that Claimant could return to work, but limited to light duty. Claimant performed light duties on May 14, however, he did not return to work after that date. From the day of the injury, Claimant complained of continuing pain in his shoulder and back. Subsequent to the initial evaluation of Claimant's medical condition, the industrial doctor determined that Claimant had suffered a dislocation and a strain. Nevertheless, the doctor continued to authorize light duty.

On June 4, 1986, Claimant telephoned the Carrier to inform his supervisor that he would not report for work until he felt better. Concurrently, a letter from the Carrier, dated June 3, 1986, was en route to Claimant; he re-
Form 1 Award No. 11587
Page 2 Docket No. 11441
88-2-87-2-82

ceived the letter on June 6, 1986. The letter instructed Claimant to report
for light duty. Claimant did not return to work and on June 24, and he was
notified to report for an investigative hearing. A day earlier on June 23,
Claimant was examined by a family doctor (arranged by Claimant); this doctor
prescribed rest and no work until July 23, 1986. Subsequent to the investi
gative hearing on July 2, 1986, Claimant was dismissed from service with the
Carrier for violation of Rule 810 (failure to protect employment) and Rule
801 (insubordination).
The Carrier has not convincingly established that Claimant was in
subordinate for failing to report for work in response to the June 3, 1986
letter (received by Claimant on June 6). The Carrier has not effectively re
butted the Organization's contention that Claimant could reasonably conclude
that the telephone notification to his supervisor on June 4 superseded the
June 3 letter. Therefore, the charge of insubordination cannot be sustained.
As for the second charge, Claimant did not act in a reasonable or
prudent manner to protect his employment. Granted that Claimant was injured
and was in some degree of discomfort, and that the industrial doctor changed
his diagnosis, nevertheless, the industrial doctor continued to authorize lim
ited, light work. Without support of other medical opinion, Claimant (1) took
emergency vacation for the period May 19 - May 30, 1986, (2) notified the Car
rier on June 4, 1986, that he would not report for work until further notice,
and (3) did not seek additional medical assistance until June 23. Furthermore,
there is no evidence in the transcript of the hearing or the full record of nri
the case that Claimant was ever given permission to be absent (except of course
for the vacation period). If Claimant disagreed with the industrial doctor's
judgement that he could perform light duty, Claimant should have expeditiously
obtained another opinion. Rather, Claimant just did not report for work. That
he finally contracted a family doctor on June 23 does not excuse his failure
to reasonably and prudently protect his employment.
In addition to his medical condition, Claimant also explained his ab
sence from work due to the unavailability of light work. This was not a judge
ment to be made by Claimant. The Carrier notified Claimant that light work
was available; Claimant should have reported to perform the work. If the work
provided by the Carrier violated a contractual agreement, work rule, workplace
practice, etc., there are procedures for relief.
The notation of insubordination shall be removed from Claimant's re
cords. If Claimant is physically capable to return to work, he shall be re
turned to employment with the Carrier, with seniority unimpaired but without
backpay.
A W A R D




Form 1 Award No. 11587
Page 3 Docket No. 11441
88-2-87-2-82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division

Attest:


Dated at Chicago, Illinois, this 29th day of October 1988.