(Brotherhood. of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employee PARTIES TO DISPUTE : (Elgin, Joliet and Eastern Railway Company

1. Carrier violated the effective Clerks' Agreement when, following an investigation on October 9, 1979, it arbitrarily and capriciously dismissed Clerk Michael R. Poer from its service effective October 11, 1979, without just cause.

 2. Carrier shall nor: be required to reinstate Clerk Michael R. Poer to its service with seniority and ail other rights unimpaired sad his record cleared of any change.

 OPINION OF HOARD: Claimant, Michael Poer, a Transportation Clerk, was hired
 on August 15, 1978 and commenced work on September 9, 1978.
 He was in an automobile accident on September 12, 1979. When called at home
 by Manager Smith on October 3, 1979 about not protecting his position, claim
 ant said he was under the care of his personal physician, had crushed knees,
 was presently as crutches., used hot and ice pecks, had seen his physician on
 September 28th and had an appointment the next week., and said that in his
 condition he could not be expected to come to work. During this conversation
 claimant was informed that his personal physician had written to the Carrier
 on September 25, 1979 test "= have released his for work."



After a hearing on October 9, 1979 claimant was dismissed effective October 11, 1979. The Organization contends that all of claimnat's statemeata that day were tree and therefore there is no plausible evidence is the record
 that he made false statements. --
                      Docket Number CL-2337


Although claimant may have been telling the troth is a very narrow sense, e.g.., he my well have been using ice sad hot packs, the determination that he wen not able to work was his alone and completely at odds with the repeated professional statements of his ova personal physician whom he was seeing regularly, and of whose professional opinion he wan aware. On September 12, 1979 the hospital he wen taken to alter the accident apparently prescribed routine care, including ice for forty-eight hours and released claimant with the recommendation that he see his family physician within 24--48 hours. On September 25, 1979 claimant's physician wrote to the Carrier that claimant's "X-rays are negative sad I have released him for work* However., this man tells me that it's company policy that anyone hurt be given 30 days off. In wl opinion this is not warranted in cases of this kite. If this is indeed a mandatory policy of your company.. then I think it's okay for yon to giant thin type of leave and not L "

 The doctor again informed the Company an October 5, 1979 that claimant wan released for work on September 25, 1979s and that claimant volunteered that "he was not going back to work became his fob includes walking 4 to 5 miles a day and climbing and should anything happen to his knees doing this, he will be suing someone. At this point I told him he was free to consult any orthopedia.surgeoa of his choice regarding his injury." The doctor we for work on the date mentioned above (September 25, 1979) dill stands-" On the Carrier's Verification of Private Medical Care foam the doctor circled "Considered capable for said employment" on October 5th.

 Thus consulting an orthopedic surgeon was claimant's own ides as was his lengthy use of crutches which he purchased without medical direction. Not only did c repeatedly disassociate himself from claimant's position that he could not work, but claimant would not explain at the hearing what treatment his doctor had performed on September 28th. From the foregoing it can be concluded that there is substantial evidence is the record that claimant was not honest about his ability to work when questioned on October 3, 1979 although aware that his own physician fogy him capable of doing so over s week earlier. From claimant's prior record which includes three Letters of Warning and two Suspensions within a rather short career with the Carrier termination is reasonable and justified.

        FIIVnYG3: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived anal hearing;

                      Award Number 23342 P04F 3

                      Docket Number CL-233$


That the Carrier and the Employee involved in this dispute are respectively Carrier and Employes within the aeaaing of the Railxay 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.


                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Older of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois this 16th day of July 1981.