(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood

(1) Because of the Carrier's refusal to grant Limmie Fields, Jr. a leave of absence in conjunction with an injury sustained while in the Carrier's service on June 2, 1976, he be reinstated and restored to his position as trackman with seniority and all other rights as such unimpaired (System File A-9440/D-9179)."

 OPINION OF BOARD: On June 2, 1976, Claimant, a trackman reported to
 Carrier supervision that he had suffered a back injury while working on an assignment with a tie gang. He was taken to the hospital emergency ward and after further ez:amination, x-ray and diagnosis within the next two days by a physician at Springfield, Missouri was advised by the latter doctor that he was suffering lumbar strain and needed two days bed rest.

 From that time, Claimant did not report for work or communicate with Carrier until July 28, 1976, 56 days after his accident and about 54 days after the examination by physician resulting in the latter's having prescribed two days' bed rest. On July 28, 1976, a letter was sent to Carrier's Division Engineer by Claimant's General Chairman requesting a leave of absence for Claimant and enclosing with said letter a statement dated July 20, 1976 from a physician in Tupelo, Mississippi (Claimant's home community) stating that Claimant "has had recurrent low back discomforts" and that the doctor was sending him to St. Louis on July 26, 1976 for "evaluation of a possible ruptured disc". The statement concludes: "Please grant leave of absence from June 2, 1976 to indeterminate date."

 Carrier denied the July 28, 1976 request for leave of absence citing Rule 87 of the Agreement which states, in pertinent part, (at 87(a)):




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                    Award Number 22121 Page 2

                    Docket Number MW-22190


        In the course of the appeal exchanges which followed,

Employes added to the record, statements from a St. Louis neurosurgical physician, one dated December 28, 1976 stating that Claimant was under

his "professional care and was totally incapacitated" from January 1,
 1977 to February 1, 1977, another dated December 15, 1976, stating

that the patient is having "difficulty with his lower back" and is to be off work until January 1, 1977 and a third captioned Supplemental

Report dated December 28, 1976 stating that "although Mx. Fields

right sided low back pain has been helped, he still has considerable pain, mainly in the center of the low back." The statement prescribed certain exercises, injections and physical therapy, predicted that

Mr. Fields should be able to return to work by February 1, 1977 and recommended leave of absence until that time.


It will be seen that the foregoing, all of it bearing dates considerably beyond the lapse of the 30-day limitation set down in

Rule 87 (a), do not serve to explain Claimant's long silence during or justification for not having acted within said limitation in the face of the reality that such absence was maintained by him for the full 30 day period and considerably beyond that without a word from him.


TWe find noteworthy the statement made in the record by Claimant's Union representatives that they had advised Claimant that he should obtain a statement from his doctor during the month of June 1976 "in order that a leave of absence could be issued to him while off work due to his injury sustained on June 2, 1976."

 Claimant did not follow this advice. The only explanation given by Claimant's representatives is that Claimant "made every effort to obtain such letter but was unable to secure the letter until July 20, 1976."

 There is no further explanation (much less probative support) concerning why, if such "efforts" were made, they were not successful.

 Thus, aside from the clear obligation of the controlling rule, the Claimant had specific advice from his own organization concerning his obligation to conform to said rule. He did not fulfill such obligatio- and without any tangible erplanation for such failure.

 Carrier points out - and it is not refuted in the record - that Clai:cant was previously removed from service because of his absence
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                    Award Number 22121 Page 3

                    Docket Number MW-22190


for more than 30 days without an approved leave of absence (such absence occurring during January and February, 1975; and following a hearing he was subsequently returned to service but without pay for time lest. This earlier incident should have caused Claimant to be we'll aware of the requirements of Rule 87 and his obligation to comply with them. Carrier is justified, also, in invoking this history to justify the degree of penalty applied in reaction to the instant infraction.

 For these reasons, we find no justification for interfering with management's recourse to the termination penalty in this matter.

        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 within 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 ADJUSTMIT BOARD

                            By Order of Third Division !


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this loth day of June 1978.