NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 SECOND DIVISION Award No. 12610
Docket No. 12519
93-2-92-2-42
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(International Association of Machinists and
(Aerospace Workers
PARTIES TO DISPUTE:
(Chicago and North Western Transportation
(Company
STATEMENT OF CLAIM:
"DISPUTE - CLAIM OF EMPLOYEES
1. That the Chicago & North Western Transportation
Company on October 30, 1990 violated the provisions
of Rule 35 of the July 1, 1921 Joint Agreement, as
subsequently amended July 1, 1979, when without
benefit of a fair and impartial investigation it
improperly dismissed from service Proviso Diesel
Shop Machinists James Aldrich.
2. That accordingly the Carrier be ordered to
(a) Immediately reinstate Claimant as an
employee
(b) Restore unto Claimant his seniority and
vacation rights."
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.
On August 21, 1990, the Carrier notified the Claimant that lie
was medically disqualified for failure to adhere to employment
Form 1 Award No. 12610
Page 2 Docket No. 12519
93-2-92-2-42
conditions prescribed by the Carrier's Medical Department at the
time when he was reinstated to duty in June 1990.
Subsequently, the Carrier wrote to the Claimant on three
different occasions (September 6, 25 and October 11, 1990) to
request that he provide completed Leave of Absence Forms. The
record also shows that Carrier's officials "on numerous occasions"
attempted to contact the Claimant and to provide assistance, but to
no avail.
The organization mainly asserts that the Claimant was
medically disqualified and that the Carrier failed to provide due
process to the Claimant. It submits that the Carrier was required
to conference the matter at issue pursuant to Rule 35 of the
Agreement and that the Claimant's seniority could not be unilaterally terminated (in effect, disciplined) without a fair and
impartial hearing.
We find for the Carrier in this matter. The Claimant could
have easily resolved the problem by responding in some manner to
one of the Carrier's numerous attempts to contact him. While we
understand the Organization's position in this matter, the
controlling issue is whether the Carrier could properly request a
Leave of Absence Form from the Claimant and, if he failed to
respond, whether his failure could form a legitimate basis for
termination of his seniority. Numerous Awards, when addressing the
same issue as herein, have held the failure to obtain a Leave of
Absence terminates employment. (Second Division Awards 8894, and
11780, to note only two of many.)
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Catherine Loughrin Interim secretary to the Board
Dated at Chicago, Illinois, this 17th day of November 1993.