NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22364
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8510) that:
1. The Carrier violated the effective Clerks' Agreement
when following an investigation held on January 28, 1976 it dismissed
Ms. Cheryl L. Holley from its service effective February 2, 1977;
2. The Carrier shall now return Ms. Holley to its service
with her seniority and all other rights inimpaired; shall compensate
her for all time lost as a result of this dismissal from service and
shall clear her record of the charges placed against her by the
Carrier.
OPINION OF BOARD: We find that on the basis of knowledge available
to it and subjected to examination by means of
appropriate investigation affording due process, Carrier was justified
in concluding that:
1. Claimant's attendance record was seriously deficient.
2. Although these absences were in significant part based
on allegations of illness, it was shown that Claimant's
physician had released her to return to work effective
November 25, 1976 without any restrictions.
3. Claimant remained out of work and unavailable for work
during the period November 14, 1976, to and including
December 14, 1976 (a total of 17 of the 22 regularly
scheduled work days). Reasons given by her were her
own illnesses and that of her child.
Award Number
22299
Page 2
Docket Number CL-22364
4. Claimant stated that she did not agree with her
personal physician's diagnosis and prognosis of her
state of health.
5. Claimant refused the Carrier's Chief Surgeon the
opportunity to contact her personal physician to
determine her medical status prior to or at the time
of the investigation.
However, after Carrier had dismissed Claimant from its
service (on February 2, 1977, on the basis of an investigation held
on January 28, 1977) a statement was submitted to Carrier under date
of March 4,_1977, by- a_physician specializing,ia obstetrics and __
- gynecology., in Which he stated that his examination
of
Claimant on
February
28, 1877,
and examination of Claimant by himself and two
colleagues in March,
1977
revealed symptoms attendant on possible
pregnancy Which "could very well" affect Claimant's physical caps___bility_to
perform
her work convetently,
Given this belated revelation of medical possibility of
justification for much of the absence involved, we believe it
appropriate that, without weakening Carrier's right to continue to
give due future weight to Claimant's past failure to protect her
Work assignments without having furnished comtemporaneous and
appropriate justification therefor, Claimant be restored to her
position, without pay for time lost.
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
J,
Award Number
22299
Page 3
Docket Number CL-22364
That the Agreement was violated.
A W A R D
i
Claim sustained to the extent and in the manner set forth
in Opinion. Accordingly, Claimant shall be reinstated to her former
position within twenty (20) days after receipt by the parties of
this Award, without payment for time lost.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 31st day of January
1979.