NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20060
Frederick R. Blackwell, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employees
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7212)
that:
(1) Carrier violated the Clerks' current Agreement when it arbitrarily terminated seniority of Pamel
November 29, 1971.
(2) That Carrier now be required to reinstate Pamela Carter Bailey
to the service in Car Department with all rights, including seniority, vacation,
sick leave, Health and Welfare rights, unimpaired, and, now be required to pay
Claimant eight (8) hours each day, Monday thru Friday, five days per week, beginning Wednesday Decem
to protect Steno-Clerk position, Car Department, Pine Bluff, Arkansas. This to
be in addition to any and all compensation already received while working in
another department.
OPINION OF BOARD: Claimant's employment with Carrier was terminated for fail
ure to comply with the provisions of Rule 26-2 (b), which
require an employee to submit medical proof of need if he wishes to remain on
sick leave beyond ninety (90) days. Claimant, with seniority date of June 1969,
was terminated on November 29, 1971. She was re-employed by Carrier on Decem
ber 8, 1971, and her present seniority coincides with that date.
The Claimant marked off on maternity leave on July 1, 1971. On Novo
ember 24, 1971, she wrote to Master Mechanic W. J. Kugler stating that she was
returning from leave of absence and that she wished to displace to a position
which was advertised during her leave. By letter dated November 29, 1971,
Master Mechanic Kugler advised Claimant that her displacement request would not
be honored, that she had failed to comply with Rule 26-2(b), and that, therefore,
she had forfeited her seniority. Thereafter, under date of November 30, 1971,
the Claimant wrote the following letter to her Local Chairman:
"On October 5, 1971, I talked with Mr. D. G. Perdue
about my leave of absence. He asked me when I wanted
to come back to work. I told him that it made no difference, but that I would like to stay off a whi
since my baby was so young. He said that would be just
fine and that he would get it okayed with personnel.
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Docket Number CL-20060
"On November 4, 1971, I again talked with Mr. Perdue to
discuss my job. He informed me that he had okayed it with
personnel for me to stay off until December 1, 1971. I
told him that was just fine and I would report to work
December 1.
On November 24 I went to Mr. Perdue's office and took him
my displacement letter on a job that had been advertised
while I was on leave of absence. He told me to report for
work December 1. On November 30 I received a letter informing me that I had been written out of serv
to comply with Rule 26-2(b) of the current Agreed Rules.
I had no knowledge of this rule and have never been informed
of it by anyone at any time."
Upon receiving a copy of this letter, the Carrier conceded that Claimant's
Supervisor, Mr. D. G. Perdue, Chief Clerk to the Master Mechanic, did call the
Personnel Department; however, the Carrier asserts that Mr. Perdue's inquiry
was solely concerned with Claimant's status under the agreement when she re- [
turned to service. Carrier further asserts that, even if Mr. Perdue had granted(
Claimant permission to be off until December 1, 1971, Mr. Perdue's action would
not serve to rectify Claimant's non-compliance with Rule 26-2(b).
The Employees contend that the Carrier's action constituted dismissal
and that Claimant was entitled to an investigation under Rule 23 (discipline).
The Carrier contends that the termination of Claimant was not a disciplinary
measure and that its action was proper under Rule 26-2(b)
Rule 26-2(b) reads as follows:
"(b) An employee absent from work for reasons stated in
paragraph (a), i.e., sickness, disability, maternity leave,
et cetera, will furnish to the supervising officer proof of
right to continued absence within ten (10) days after having
been absent ninety (90) consecutive calendar days, or give
satisfactory reason for not doing so, and within ten (10)
days following each ninety (90) day period thereafter, such
proof to be in the form of letter or statement from a reputable doctor to the effect that the employ
duties. The supervising officer may, however, request such
proof at any time to be furnished within ten (10) days
following receipt of such request. An employee failing to
furnish letter or statement from a reputable doctor as provided above will forfeit all seniority rig
Award Number 20086 Page 3
Docket Number CL-20060
The issues raised by the foregoing, and the entire record herein,
have been decided in Carrier's favor in three recent Awards of this Board.
In those Awards, Nos. 19806 (this Referee), and 19904 and 19905 (Bergman),
involving these same parties and this same Rule 26-2(b), arguments virtually identical to those pres
comprehensively in our accompanying Opinions. In discussing the meaning and
effects of Rule 26-2(b) in Award No. 19806, this Board stated:
"The plain sense of the above rule is that when an employee
fails to comply with the proof requirements of the first two
sentences of the rule, the third and last sentence is automatically invoked and, thereunder such an
seniority rights and be considered out of service.' Further,
from the record before us, there is no doubt that the above
underlined text authorized Carrier's September 2, 1971 notice
to claimant to furnish medical proof of illness within ten days;
such proof was not furnished as required by the rule and, thereupon, the forfeiture provisions of th
became applicable. Thus, we conclude that what occurred here
cannot be regarded as having a disciplinary nature and, consequently,
Carrier was under no obligation to conduct a Rule 23 investigation
and hearing."
We reaffirmed the above ruling in Award No. 19905 (Bergman), wherein we stated:
"On June 20, 1973, in Award 19806, this Division reached a decision as to the effect of Discipli
to Rule 26.2. We held that disciplinary action was not involved; that there was no need to conduct a
that termination of the employe was 'self invoked' by the provisions of Rule 26.2, when the employe
the requirements of the rule. Despite the Labor Member's
dissent on the facts of that case, we shall follow our determination that Rule 23 does not apply and
We believe these prior Awards correctly differentiate between situations within the purview of R
nature and, consequently, we shall rule here, as in those prior Awards, that
Carrier's action in terminating Claimant under Rule 26-2(b) did not require an
investigation under Rule 23. This leaves only one other facet of the dispute
to be considered, namely, whether an excusable reason existed for Claimant's
non-compliance with Rule 26-2(b). In this regard we have carefully studied
Claimant's letter of November 30, 1971, in conjunction with Carrier's statements relative thereto. W
she contends that Mr. Perdue had obtained the Personnel Department's approval
of a leave extension through December 1, 1971. She does not contend that Mr.
Perdue, himself, authorized the leave extension. Therefore, when verification
of the extension was not forthcoming from the Personnel Department, the fact
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Docket Number CL-20060
is established that an extension was not authorized and, in consequence,
what happened between Claimant and Mr. Perdue is left in an inconclusive
state. Further, the Claimant does not contend that her conversations with
Mr. Perdue touched upon, or in any way dealt with, her need to comply with
Rule 26-2(b); so, even if she had obtained the extension, this alone would
not have relieved her of the requirements of Rule 26-2(b). As we have
pointed out in the above cited Awards, the provisions of Rule 26-2(b) are
self-invoking and the seniority forfeiture provisions are automatically
triggered by an employee's failure to timely submit the requisite medical
proof. The unfortunate fact is that, as Claimant stated, she had no personal knowledge of the rule R
does not affect the situation, however; the agreement rule had been circulated
and every employee is charged with knowledge of the contents of the Agreement.
In view of the foregoing we shall deny the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes eithin the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this llth day of January 1974.