- NATIONAL RAILROAD ADJUSTMENT BOARD
 . Award Number 22451



    (Brotherhood of Railway, Airline and Steamship Clerks,

    ( Freight Handlers, Express and Station Employes

    PARTIES TO DISPUTE:

    (Chicago and North Western Transportation Company


                  STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood GL-8475, that:


    "1. Carrier violated the current Agreement Rules, particularly Rule 21, when under date of May 27, 1976 it dismissed from service Mr. Wayne J. Jozwick, Leader Order Filler at Proviso, account investigation which was concluded on May 20, 1976;


    2. Carrier shall be required to reinstate Mr. Wayne J. Jozwick with all rights unimpaired, and compensate him for all time lost as a result of the dismissal."


    OPINION OF BOARD: Claimant was dismissed from Carrier's service,

    after investigation on a charge dated January 29,

    1976, which reads:


            "Your responsibility for your failure to protect your assignment from December 1, 1975 to and including January 28, 1976, as a result of your having been arrested and charged with homicide, and following such arrest were admitted to a hospital for treatment."


    A brief review of the background of the case before us is in order.


    The record shows that on December 2, 1975, a woman identifying herself as Claimant's aunt called Carrier's Chief Clerk and stated that Claimant would not be at work for a time because of a "fire arms accident." On December 5, Claimant informed his supervisor that he was staying at his mother's house, that he had completed some medical exams which disclosed a bad liver and a nervous condition, that he was scheduled to appear in court on December 10, and that he would contact the Carrier after his court appearance. Claimant's supervisor testified:

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(1) that Claimant did not request permission. ta,absent"himself; (2) that he did not notify .Claimant that he did not.have permission to be off.

 As it turns out, Claimant had been arrested for homicide, which accounted for his absence.

        The Organization challenges Carrier's action and seeks to

have the dismissal voided and Claimant reinstated on the grounds
 that the investigation on the charges was not timely heard; that
 Claimant was denied a fair and impartial hearing in that he was denied
 the..right to face his accusers; that Claimsat did protect his.assign
 aF-irsanging.for.stelephoneca~Lt -Ca a Cleric on
 December 2, the day after the ,hooting incident, that he would not be
 able to perform service; and that Carrier failed or refused to send
 Claimant leave of absence forms, even after requested to do so by
 Claimant's representative.

 The organization holds that Claimant's notification to Carrier on December 2, through his aunt, complied with Rule 26(a) which reads:

        "(a) An employe absent from work because of sickness, personal injury or other disability of himself or immediate member of his family, .hall notify his supervising officer as early as possible. Such absences for a full calendar month or more mast be covered by formal leave of absence as per Pule 23."


        Rule 23(a) provides that:


        "(a) Leaves of absence for a period of a full calendar month or more must be formally authorized in writing, copy of same to be furnished to employs, Division and General Chairman and be made a matter of record."


The Organization relies heavily on Rule 21(a), Discipline and Investigation, which requires that "investigation ff discipline or dismissalt shall be held within 7 calendar days of the alleged offense or within 7 calendar days of the date information concerning the alleged offense has reached his supervising officer." The investigation ms set for February 2, 1976, but was postponed until February 5.
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The Organization, in its ex parts submission, urges dismissal of the charge because the investigation was not held within 7 days of the date Carrier had knowledge or information regarding the reason far Claimeat's absence.

 Two hearings were held, the first on February 5, 1976, at which Claimant was present but did not testify on advice of his attorney, because of the pending trial; and the second, after several postponements at the Organization's request, on May 20, 1976. Claimant was not present at the second hearing. Claimant's representative requested a further postponement of the May 20 hearing, submitting as justification a letter dated May 19 from Claimant's physician that Claimant "is still under my psychiatric care and not as yet ready to return to full time employment." The Hearing Officer denied the request for postponement, aver the objections of Claimant's representative.

 The Organization's position is that the Carrier was informed on December 2 that Claimant would be absent for an indefinite period, and that within a week or so after that date, Carrier had information that Claimant was admitted to a hospital for treatment in connection with the homicide. Nevertheless, formal charges arising out of Claimant's absence from work were not filed until January 29, 1976, a period far in excess of the 7 days specified in Rule 21.

 The Organization asserts that Claimant, through his aunt, called in timely fashion to protect his assignment. It contends that the Daily Attendance Record for December 2, 1975, introduced into evidence at the hearing, indicates that Claimant's aunt did protect Claimant's assignment by calling sad notifying the appropriate Carrier official (the chief Clerk) that Claimant would not be able to perform service.

 The Organization also charges that Claimant was not afforded a fair and impartial hearing because he was not present at the investigation held May 20, 1976 to fa witnesses. To this the Organization adds that the Hearing Officer unfairly cut off its cross-examination of the chief Carrier witness, Claimant's supervisor.

 Claimant's representative stated at the hearing that he had called Claimant's supervisor on January 3, 1976,, requesting a copy of the leave of absence authorization form. The forms were not sent even
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though the Organization contends that it was the practice on the property to send such forms automatically to an employe who was going to be absent for an extended period.

 Finally, the Organization poses to us that the basic issue for determination is whether Carrier, under the applicable Agreement, can dismiss an employe charged with homicide and required to undergo psychiatric observation and treatment, and who, consequently, is unable to protect his assignment. In essence, according to the Organization, Claimant's failure to report to work was due to circumstaqcps beyond his control; i.e., he was under arrest on charge of homicide and was undergoing examination and treatment. Petitioner points out that Claimant's responsibility in connection with the homicide was still unresolved at the time of its submission to this Board.

 This Board has previously ruled in cases where employes charged refused to testify or to answer questions at a formal hearing. In Award 17946 (McGovern), this Board stated:

        "Careful consideration of the record discloses that Claimant was provided a fair and impartial hearing in accord with Agreement rule. Although Claimant declined to testify at the investigation because of the pendency of charges in civil proceedings the testimony of others discloses that Carrier's evidence was substantial and sufficient to support the finding of guilty. The claim must be denied."


With respect to the Organization's charge that the hearing was held in Claimant's absence, because his psychiatrist had written that Claimant was still under his care, this Board has held in many cases that when a claimant failed to appear at a hearing, after having been properly served with notice, Carrier's proceeding with the hearing was not a denial of due process.

 Claimant was charged with failure to protect his assignment; i.e., for being absent without permission, from December 1, 1975 to and including January 28, 1976. The record indicates: (1) that Claimant, through his aunt, notified Carrier on December 2, 1975 that he would be absent because of a firearms accident; and (2) that Claimant personally telephoned his supervisor on December 5, 1975 and reported that he had completed some medical examinations which disclosed a bad liver and a nervous condition and that he was to appear in Court on December 10 and that he would contact Carrier after his court appearance.
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However, the record also indicates that Claimant did not request permission to be absent during the period in question; that he did not request the requisite leave of absence forms for absences in excess of 30 days as specified in Rule 23(x); and that he did not, in fact, have permission to be absent.

 On January 3, 1976 Claimant's representative called the supervisor in Claimant's behalf, and informed the supervisor that Claimant had called him because he had not received any leave of absence papers. Claimant's representative was told that Claimant had never requested leave of absence forms and that Claimant by then had been absent from his assignment for over 30 days.

 Petitioner contends that Carrier knew Claimant's whereabouts and situation so as to properly prefer charges and issue a notice of investigation prior to January 29, 1976, the date of the letter of charges. Carrier counters that Claimant was absent from his assignment from December 1, 1975 to and including January 28, 1976; that he was notified on January 29, 1976 to attend an investigation on February 2, 1976 concerning his responsibility for failure to protect his assigment during that period; that Claimant's absence on January 28.;was within the time limit provision of Rule 21(x) which provides for a hearing within seven days of the alleged offense; and that Claimant's absence on January 28 was simply a continuation of his unexcused absence starting December 2, 1975 -- which constituted one offense.

 The Agreement contains obligations, borne by both the individual employs and the Carrier which must, like other contractual requirements, be followed. While we may understand and even sympathize with Claimant's situation and predicament, it was his duty to report for work as scheduled unless he obtained management's permission to be absent. Claimant had an opportunity on December 5 -- four days after the start of his absence -- when he called his supervisor. He knew then that he was involved in a situation which might well cause him to absent himself from his job for a lengthy (though indeterminate) period of time. He could have requested authorization for a leave of absence, explaining the circumstances as best he could. Contractually, he was obligated to request a leave of absence in order to comply with the provisions of Rule 23(x). He did not make such request; his absence was not excused. By the time his representative called Claimant's supervisor for the leave of absence forms, Claimant had been absent without authorization over 30 days.
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Claimant failed to protect his assignment between December 1, 1975 and January 28, 1976, as charged. The reasons for his absence included incarceration and hospitalization while undergoing psychiatric treatment. The weight of arbitral authority upholds the right of an employer to dismiss an employe absent from duty regardless of the reason -- even physical or mental illness.

 This Board has repeatedly held that an employe's arrest or incarceration does not constitute justification for his absence from work and consequent failure to protect his assignment. We concur in this line of Awards.

 Although Claimant, through his aunt, notified Carrier's Chief Clerk, the person assigned to take such messages, that Claimant would be absent, such notice alone does not exonerate him from the obligation to request and receive permission to absent himself for an extended period.

 Claimant's absence was not confined to a specific date. His absence was continuous and uninterrupted between the dates listed in the letter of charges. Carrier's scheduling of the investigation for February 2, 1976, therefore, fell within the time limits prescribed in Pule 21(a).

 Claimant was dismissed for failure to protect his assignment between December 1, 1975 and January 28, 1976, as charged. The evidence supports the charge and we must, therefore, 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 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.

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                    A W A R D


        Claim denied and dismissed as indicated in the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: xecutive Secretary


        Dated at Chicago, Illinois, this 13th day of Ju3y IM.