Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11890
SECOND DIVISION Docket No. 11740
90-2-89-2-60
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood Railway Carmen/ A Division of TCU
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT OF CLAIM:
1. Claim on behalf of Carman W. E. Byrd, Spartanburg, South Carolina.,
that the Carrier violated Rule 30 of the controlling Agreement when they required him to present a doctor's statement each time he was absent due to sickness.
2. That accordingly, the Carrier be ordered to rescind the instructions contained in bulletin dated February 1, 1988 and signed by J. B.
Shrewsbury, Manager Hayne Shop.
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.
Parties to said dispute waived right of appearance at hearing
thereon.
In this dispute, the Organization contends that Carrier unilaterally,
changed Rule 30 of the Controlling Agreement, when it issued an "all employees
bulletin" on February 1, 1988 requiring employees to notify the Company between 7:10 A.M. and 7:30 A.M. if any employee was unable to protect his assignment because of sickness or other good cause. In addition, the Organization
asserts that Carrier's February 1, 1988 letter to Foremen directing said officials to require specifically identified Carmen to submit medical substantiation of absences was also a unilateral modification of Rule 30. In essence,
the Organization maintains that by requiring specific employees to provide a
doctor's slip for each absence, while several hundred other employees are exempt from this requirement, Carrier improperly imposed a new condition of employment. It cited several Second Division Awards as-supportive authority for
its position. See Second Division Award Nos. 9711, 7632, 8251, 7020, 7632,
8251, 9949, 11155 and 11602.
Form 1 Award No. 11890
Page 2 Docket No. 11740
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Conversely, Carrier concedes that while Rule 30 provides for excused
absences due to sickness, illness or other legitimate reasons, such absences
are indeed not limitless. It asserts that it has the right to require an employee who is excessively absent to provide medical verification for his absences. Moreover, it points out that Rule 30 does not preclude its officials
from requiring an employee to provide medical evidence for an absence assertedly due to illness, and premises this interpretative position on Rule 30's
language that excessive absenteeism and/or tardiness will not be tolerated.
It also argues that the Board lacks jurisdiction to hear this case, since the
Board is faced with a premature dispute in the nature of a request for a declaratory judgment. It referenced a Public Law Board award issued on its property involving the same Organization as on point and dispositive. See Public
Law Board No. 3858, Award No. 11 issued October 18, 1985.
In considering this case, the Board concurs with Carrier's basic
position. Essentially, the All Employees bulletin posted on February 8, 1988
does not impose a unilateral change of Rule 30, since it merely requires that
an employee unable to protect his assignment because of sickness or other good
cause must notify the Company, if possible, between 7:10 A.M. and 7:30 A.M.
This is not an unreasonable time regulatory requirement, since Carrier has an
opportunity to deploy forces differently, or call extra board or furlough employees. In the absence of this notice, employees are by definition and implicitly required to notify Carrier officials of any prospective absences and
usually before the start of the work day. In fact, Rule 30 (a) requires notification as early as possible. While the February 1, 1988 All Employees bulletin sets forth a time period, it also contains the words, "if possible", and
recognizes exceptions such as accidents or breakdowns en route to work. It is
not inconsistent with the intent of Rule 30 (a).
Similarly, Rule 30 (b) addresses excessive absenteeism and tardiness
and posits a warning that except due to sickness, excessive absenteeism or
tardiness will not be tolerated. It reads:
"The provisions of paragraph (a) shall be strictly
complied with. Excessive absenteeism (except due
to sickness under paragraph (a) above) and/or
tardiness will not be tolerated and employees so
charged shall be subject to the disciplinary procedures of Rule 34."
Consequently, an employee who is excessively absent or tardy is subject to
disciplinary charges, unless he could establish he was sick. As an operational necessity, it would make little sense for an employee charged with
excessive absenteeism or tardiness to offer medical proof for the first time
at an Investigation, since legitimate absences are permissible. Thus, Carrier
has the right to request medical proof if an employee is deemed excessively
absent or tardy. Public Law Board No. 3858, Award No. 11 involving the same
Carrier and Organization recognized this prerogative. There is merit to the
Organization's observation that not every illness or sickness requires medical
attention ("proof"), but the primary issue is whether Carrier can require such
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proof if an employee is deemed excessively absent. Award No. 11 of Public Law
Board No. 3858, is the closest Award on point and it affirms Carrier 's position.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:_
-'Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 11th day of July 1990.