(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (St. Louis-San Francisco Railway Company

1. The Carrier acted in an arbitrary, capricious and unjust manner and violated the agreement between the parties when on October 6, 1978, it failed and refused to permit rotating extra board employee, B. J. Goode, to report for his assignment.

 2. In view of the foregoing arbitrary, capricious and unjust action of the Carrier, it shall now be required to:









OPINION OF BOARD: The claimant had been in Carrier's service since
 March 17, 1972. At the time of the occurrence out of which this dispute arose, claimant was regularly assigned to Rotating Extra Board No. 10, Position No. 1-C, at Fort Worth, Texas. At about 11;00 P.M., September 28, 1978, claimant contacted the caller at Fort Worth, and according to the Carrier, requested authority to be away from his assignment on that date for personal reasons, for one day only.

 On October 9, 1978, claimant was notified by the Division Superintendent:

      "Our records show that you were granted a leave of absence from September 28, 1978, at 11;10 p. m. until September 29, 1978, at 11;10 p. m. Our records further show that you did not report at the end of this leave of absence and therefore, under and in accordance with Rule 34 (b) of the Clerks' Agreement, you are considered out of the service. Accordingly, your record is being closed."


        Rile 34 (b) of the Agreement, referred to in the notice, reads;


      "Rule 34. VOLUNTARY ABSENCE FROM DUTY:


      "(b) Leaves of absence for thirty days or more shall be in writing, signed by the proper officer. An employe who fails to report for duty at the expiration of leave of absence shall be considered out of the service, except that when failure to report on time is the result of unavoidable delay, the leave shall be extended to include such delay. Except as provided in Rule 35 or by agreement between the Management and General Chairman, employes accepting outside employment while on leave of absence shall be considered out of service."


On October 13, 1978, claimant requested an unjust treatment hearing under Rule 32 of the Agreement. The hearing was conducted aa-November 14, 1978, and on November 17, 1978, claimant was advised:

      "This is to advise that no evidence of probative value was presented in the hearing held with you on November 14,'1978 to establish that you were unjustly treated as alleged.


      "Therefore, inasmuch as your failure to report for duty at the expiration of your leave of absence was not the result

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      'of unavoidable delay you are still being considered out of service as required by Rule 34 of the Clerks' Agreement."


In the handling on the property there was some question between the parties as to whether the discipline rules of the agreement applied or whether claimant forfeited his seniority under Rule 34. On February 5, 1979, Carrier's Director of Labor Relations wrote the District Chairman in part in connection with a conference that was held on January 22, 1979:

      "It was understood and agreed among us that this concerns only the question of whether or not the Claimant has maintained his seniority under Rule 34 (b) of t Agreement. In other words, this is not a question of discipline."


At the same time the Carrier offered to reinstate claimant with seniority, vacation and other rights unimpaired, but without pay for time lost.

        The District Chairman responded in part:


      "xxxx First, with respect to Mr. Thompson's statements in his February 5 letter, he indicates that during conference on January 23, 1979, it was understood and agreed that the only question in this dispute was whether claimant had maintained his seniority under Rule 34 of the clerks' agreement. The only reason I agreed to this was because of the Carrier's repeated statements that this was not a discipline case, but was simply a question as to whether the claimant had maintained his seniority under Rule 34. After repeated assurances by all Carrier officers present at that conference, an offer was made to reinstate claimant Goode with seniority, vacation and other rights unimpaired but without pay for time lost. I am at a total loss to understand such an offer in a case involving claimant's seniority. This is the usual and customary procedurp.-for handling a case involving discipline, but is not one applicable involving a question of seniority.


      "Mr. Thompson's February 6 letter does not completely reflect the offer which the Carrier conveyed to me during our conference, as I was under the opinion that th offered reinstatement to claimant with seniority, vacation and other rights unimpaired but without pay for time lost

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      "and without the right to handle for pay for time lost. It was because of the Carrier's denial to allow us to handle for pay for time lost that claimant rejected this offer of reinstatement."


Our considered opinion, based upon the record, is that claimant's absence in excess of one day did not come under the seniority forfeiture provision of Rule 34(b), but was actually a case of discipline. See recent Award 22479. We do not consider a one-day lay-off to the caller as a leave of absence contemplated by Rule 34(b). Our opinion that we are dealing with a discipline case is strengthened by the Carrier's inclusion of claimant's personal record with its submission to the Board, which may have some bearing in a discipline case, but not in a forfeiture of seniority case.

 After very careful consideration of the entire record, it is the conclusion of the Board that the proper solution of the dispute, and we so award, is for the Carrier to again extend to claimant the offer to reinstate him as clerk, with seniority and other rights unimpaired, but without pay for time lost, provided that he can pass satisfactory return-to-work physical examination.

 The Organization has presented no agreement support for Parts (c) and (d) of the Statement of Claim, and they are denied.

 Due to the unusual circumstances in this case, our award should be considered as being confined to this case alone and is not to be used as a precedent in any other case involving what may be considered similar facts.

        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 Employee involved in this'dispute are respectively Carrier and Employee 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 indicated in the Opinion.
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                      A W A g D


        Claim sustained to the extent indicated in Opinion and Findings


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: -a#A /. /~4roooo
 Executive ecretary

 Dated at Chicago, Illinois, this 30th day of May 1980,