NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23101
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Apprentice Foreman A. H. Brinson was without
just and sufficient cause and on the basis of unproven and disproven charges
(System File C-4(13)-AHB/12-39 (78-22) J/.
(2) Apprentice Foreman A. H. Brinson shall be afforded the remedy
prescribed
in
Section 3 of role 39."
OPINION OF BOARD: The claimant, an Apprentice Foreman, had about five years
of service with the Carrier, and was assigned to Section
Force 8098 at Dawson, Georgia.
On December 12, 1977, after working about two hours, claimant left
the job because of alleged illness. He went to a doctor in Dawson, who
treated him and released him to return to duty. Claimant felt that his
physical condition needed further attention, and he returned to his home in
Vidalia, Georgia, where he was treated 'by his personal physician. On December 14, 1977, claimant no
foreman that he was in a hospital and would return to work when he was well.
Claimant had made no further contact with any of his supervisors
and on January 12, 1978, Carrier's Division Engineer sent him a memorandum
attaching a MS 4743 form for his doctor to fill out. No answer was received
to the January 12, 1978, memorandum. On January 24, 1978, a tracer memorandum
was sent to him. He did not respond to the memorandum of January 24, and on
February 9; 1978 he was charged with failure to carry out instructions and
for unauthorized absence, with investigation set for February 16, 1978.
The investigation was conducted as scheduled. A copy of the
transcript has been made a part of the record. At the conclusion of the
investigation claimant was given a Form 4743 and requested to have it filled
out by his doctor at Vidalia and furnished to the Roadmaster's office.
Award Number 22961 Page 2
On February 27, 1978, the Division Engineer wrote claimant in part:
"The hearing developed that an December 12, 1977 you left your
position as Apprentice Foreman at Dawson, Ga. to go to the doctor
and returned to your home. It further indicates that about 7:30 PM
an December 14, 1977 you called your immediate supervisor, Foreman
B. F. Harris at Dawson, and advised him you had gone to the doctor
in Vidalia, Ga. and he had placed you in the hospital, diagnosing
your condition as pneumonia. After not hearing from you at the
end
of 30 days or on January 12th, Mr. 0'Quinn addressed you a letter
under my signatuFe, instructing that you have your doctor fill out
attached Form MS-4743 and return it to this office promptly. As
brought out in the hearing, the purpose of these instructions ware
to obtain a medical opinion as to your condition and whether or
not you were physically able to return to work and, if not, when
you would be able to do so. You stated that you did not receive
Form 4743 with the letter of January 12th, however, you made no
attempt to contact any of your supervisors for another form nor
call this office and discuss the situation with Mr. 0'Quinn or
myself.
"You alleged that you did not receive the letter of January 24, 1978
although it was addressed to the last post office address you had
given us, and it was not returned to this office unclaimed. You
also later stated that this was your mother's post office box and
you and your brother had been using same in the past.
"While it is questionable as to whether or not you complied with
Rule 17 b and c, since you did notify your foreman, there is no
question when instructed to furnish proof of your condition on
January 12th you made no attempt to comply with these positive
instructions.
"Your entire personal record file was reviewed following the hearing
and you took no exceptions to the items listed on the Form PS-10
which indicated your continued absence from your work assigamento
with utter disregard for the requirements of Rule 17 b and c of
your Working Agreement and further indicates an insubordinate
attitude in connection with such failures.
"Just prior to this particular instance you were suspended for
15 days (November 27 through December 11, 1977) for failure to
comply with Rule 17 b and c, and following a conversation with
your General Chairman, Mr. Bramlett, and you personally, at *fiich
time you assured me that you would in the future comply with our
working rules, and I reduced your suspension and allowed you to
return to work on December 5, 1977.
Award Number 22961 Page 3
Docket Number MW-23101
"For your failure to comply with instructions which constitutes
violation of Rule 18 of the Safety Rules as charged, you are
dismissed from service, effective at close of work day on
February 28, 1978."
It was also brought out in the on-property handling that when
the Form 4743, given to claimant at the close of the investigation, was
returned it showed that claimant had been released by his personal physician
at Vidalia to return to work on December 30, 1977. No explanation was given
for his absence after that date.
Rule 18 of Carrier's Safety Rules for Engineering and Maintenance
of Way Employes reads;
"18, Disloyalty, dishonesty, desertion, intemperance, immorality,
vicious or uncivil conduct, insubordination, sleeping on duty,
incompetency, making false statements, or concealing facts
concerning matters under investigation, will subject the offender
to dismissal."
Paragraphs (b) and (c) of Rule 18 reads:
"(b) An employee desiring to be absent from service must obtain
permission from his foreman or the proper officer. In case an
employee is unavoidably kept from work, he must be able to
furnish proof of his inability to notify his foreman or proper
officer.
"(c) An employee off duty account of sickness or for any other
good cause must notify his foreman or the proper officer as
early as possible. In case of sickness or injury, they will not
be required to secure leave of absence to protect their seniority,
but may be required to furnish proof of disability."
Based upon our review of the entire record, including claimant's
past record, which shows numerous warnings and one prior suspension for
absenteeism, we do not find the discipline imposed by the Carrier to be
arbitrary, capricious or in bad faith.
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 22961 Page 4
Docket Number NW-23101
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 immolved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOAR
By Order of Third Division
ATTEST:~Lt~
Executive Secretary
Dated at Chicago, Illinois, this 28th day of August 1980.