PARTIES TO DISPUTE:

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

 (1) The dismissal of Trackman R. Duncan was without dust and sufficient cause and wholly disproportionate to the offense with which charged (System File C-x+(13)-RD/I2-39(79-23) J).

 (2) Trackman R. Duncan shall be reinstated with seniority and all other rights unimpaired, his personal record be cleared and he shall be compensated for all wage loss suffered.

 OPINION OF BOARD: Claimant was employed as a trackman. Ea September, 1978,
 he was assigned to Force 8598, on Carrier's Savannah Division. The Carrier contends that Claimant did not report for work on September 7, 1978, and did not advise~his Foreman or Supervisor of his whereabouts.

 The Organization contends that Claimant suffered a back injury on September 6, 1978, while attempting to push a dolly loaded with cross ties; that on September 7, 19'78, Claimant was unable to work; that he telephoned the Yardmaster at Savannah Yard, informed the Yardmaster of his disability, and requested that the Yardmaster make such information known to Claimant's Supervisors, the Foreman and the Roadmaster, who reported for work at Savannah Yard, and that during the following week he repeated the telephone calls to the Yardmaster. The Organization also states that Claimant's wife made a telephone call to the Division Engineer and submitted as insurance claim farm to that office.





                    Docket Number MW-23703


        For your responsibility in connection with the above you are charged with violation of Rule 17b and 17c of the Working Agreement between Seaboard Coastline Railroad and the Maintenance of Way Employees, dated July 1, 1968, in that you were absent from your assignment without permission and failed to notify your Foreman or other official of the company of your need to be absent. You are also charged with violation of Rule 10 of the Safety Rules for Eagr, and MofW Employees, effective September 1, 1967, account failure to promptly report an injury to your supervisor. You era also charged with violation of that part of Rule 18 of the Safety Rules for Engr. and MofW Employes, effective September 1, 1967, having to do with making false statements or concealing information on matters under investigation.


        Division Engineer C. R. Harrell will arrange for a hearing in connection with these charges."


Hearing was held on November 27, 1978, and Claimant was dismissed from service on December 4, 1978.

        Rule 17(c) of the applicable Agreement reads:


        "(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."


In the investigation the Claimant testified that on September 6, 1978, while attempting to push a dolly loaded with ties; he injured his back; that he told Trackman Ray, with whom he was working of his injury, and on the same date he told his Foreman of the injury, with no response from the Foreman, but he was sure that the Foreman heard him. He also testified that on the morning of September 7 he called the yardmaster at Savannah Yard and informed him of his disability and requested the Yardmaster make such information known to Claimant's Supervisors, the Foreman and Roadmaster who report for work at Savannah Yard.

 The Roadmaster testified that on September 7 he did receive information from the Yardmaster that Claimant had called in sick. The Claimant stated that the reason he called the Yardmaster was that he did not have the telephone numbers of the Foreman or the Roadmaster. The Foreman stated that no report was made to him by the Claimant of an alleged injury on September 6, 1978; and that the' Yardmaster did not notify him of the call from the Claimant on September 7, 1978. Trackman Ray, with whom Claimant said he was working, testified that Claimant said nothing to him about an alleged injury.
                      Award Number 232 Page 3

                      Docket Number EW-23703


There are issues is the case that we are unable to reconcile, such as reporting the personal injury to the foreman on September 6. As Claimant was allegedly absent because of personal injury, we consider Rule 17(c) rather than Rule 17(b) to be applicable. We do not consider that Claimant was attempting to mislead anyone when he reported his absence to the Yardmaster's office, with the request that his Foreman and Roadmaster be notified, although he should have reported direct to the Foreman or Roadmaster. Discipline was warranted, but, under the circumstances, we consider that permanent dismissal was excessive. We will award that Claimant be restored to the service with seniority unimpaired, but without any compensation for time lost while out of the service, provided that Claimant can pass physical examination that may be required by Carrier.

 FIrTDIMS: The Third Division of the Adjustment Board, after giving the parties
 to this dispute due notice of hearing thereon, and upon the whole
 record and all the evidence, finds and holds:

 That the Carrier and the Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Lobar Act, as approved June 21, 1931.;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the discipline was excessive.


                        A W A R D


        Claim s;xstained is accordance with the Opinion.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

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        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 26th day of March 19P.2.
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