(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The dismissal of Extra Gang Laborer D. P. Johnson was without just and sufficient cause (System File Md-78-1-CB/53-653).

 (2) The claimant be reinstated with pay for all time lost, with vacation, seniority and all other rights unimpaired sad the charge against him be stricken from his personal record.

 (3) The claimant be reimbursed for personal expense incurred, including automobile mileage incurred, attending his hearing held on December 12, 1977."

 OPINION OF BOARD: Claimant was employed as a laborer on Carrier's Extra

On November 7, 1977, claimant was notified by the Roadmaster of his dismissal from service, with no reason given. On November 10, 1977, claimant requested a hearing under the provisions of the applicable Agreement. In scheduling the hearing, which was postponed and held on December 12, 1977, the Division Engineer referred to claimant's dismissal on November 7, 1977, as -

On December 23, 1977, claimant was advised by the,Hivision Engineer that his dismissal was sustained.



                      Docket Number NW-22846


A copy of the transcript of the hearing conducted on December 12, 1977, has been made a part of the record. Based upon our review of the record, the Board does not find substantial evidence to support dismissal of claimant for alleged violation of Rule "F", It is our view that claimant made every reasonable effort to report the injury to the foreman and to obtain necessary forms for medical attention. We find, therefore, that his dismissal was improper.

 Having found that the charge against claimant was without foundation and not substantiated by the evidence of record, we come to that part of the claim requesting compensation for all time lost in accordance with Rule 6-5, which
        "If, by reason of such unsustained charge, the employee has been removed from the position held, reinstatement will be made and payment allowed for earnings lost, less any amount earned during the period he is held out of service."


Carrier calls our attention to, and we take notice of, a law suit which claimant has filed subsequent to his discharge alleging, in two separate counts, that by virtue of injuries sustained during claimant's employment relationship, claimant sustained severe and permanent injuries to his back and legs resulting in disability and disfigurement and which has caused him and will cause him to suffer great pain and mental anguish; and he has lost and will in the future lose earnings he otherwise would have earned but for his injury, etc. Thus, says Carrier, claimant would not have been in a position to work and could not have sustained lost earnings.

        At this point, we note from the record that the lawsuit has not

been concluded and no determination has been made concerning claimant's
 alleged inability to work during this period. Under the provisions of
 Rule 6-5, claimant is entitled to payment for earnings lost, less any
 amount he earned during the period he was out of service. The question
 of whether he was physically able to work and thus incur "earnings lost"
 during the claim period, given the record as it now exists, cannot be
 resolved by the Board at this time. ,-

        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;

                      Award Number 22813 Page 3

                      Docket Number MW-22846


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 violated to the extent shown in Opinion.


                      A W A R D


        Claim sustained to the extent indicated in Opinion and Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST; 49&. &Z40e.
        Executive Secretary


Dated at Chicago, Illinois, this 18th day of April 1980.
                                                Serial No. 315

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

INTERPRETATION NO. 1 TO AWARD N0. 22813

DOCKET N0. MW-22846


NAME OF ORGANIZATION: Brotherhood of Maintenance of Way Employes
 NAME OF CARRIER: St. Louis Southwestern Railway Company
Upon application of the representatives of the Employes involved in the above Award, that this Division interpret the same in light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made:
Award No. 22813 was rendered on April 18, 1980. Claimant had been dismissed from service on November 7, 1977, for failure to report a personal.injury that he allegedly sustained on October 13, 1977. The concluding paragraph of Award No. 22813 read in part:
        ... Under the provisions of Rule 6-5, claimant is entitled to payment for earnings lost, less any amount he earned during the period he was out of service. The question of whether he was physically able to work and thus incur 'earnings lost' during the claim period, given the record as it now exists, cannot be resolved by the Hoard at this time.·


Following the issuance of Award No. 22813 on April 18, 1980, the record now shows that Claimant Johnson was examined by the Carrier's physicians and released to return to work on April 30, 1980.
The record now also shows that following Claimant's alleged injury on October 13, 1977, he submitted statement from his physician, dated November 2, 1977, reading:
        "The above named patient may return to work on November 3, 1977.


Claimant did return to work for two days, November 3 and 4, 1977, prior to his dismissal on November 7, 1977.
The record also now contains a statement from Dr. George R. Schoedinger to the effect that he first saw Claimant on January 19, 1978. There is no record that Claimant's doctors released him to return to service from January 19, 1978, to the time that Carrier's doctors released him to return to work on April 30, 1980. In Award No. 22813 we held Claimant's dismissal on November_j, 1977, to have been improper.
Considering the medical evidence now before the Hoard, Claimant is entitled to be paid under Rule 6-5 of the Agreement, for the period November 7, 1977, to January 19, 1978.
                                                Serial No. 315


                      Award Number 22813

                      Locket Number MW-22846 Page 2


Referee Paul C. Carter, who sat with the Division as a neutral member when Award No. 22813 was adopted, also participated with the Division in making this interpretation.
                                NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Third Division


ATTEST
        Nancy Doer - Executive Secretary


Dated at Chicago, Illinois, this 19th day of October, 1983.