(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEi,~1T OF CLAIM: "Claim of -the System Committee of the Brotherhood that:

 (1) The Agreement was violated when the Carrier improperly terminated its employment of Sectionman R. B. Godoy on January 6, 1961 (System File 5-19-11-14-55013-210-G).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant had been in Carrier's service about fifteen
 years as a sectionman. He was on authorized vacation between December 8 and December 26, 1980. The Carrier contends that on or about December 10 the claimant called the Roadmaster's clerk and recuested a two weeks leave of absence beyond December 26 and was advised that his request could not be granted. On December 28, 1980, claimant sent a telegram to the Division Enginee


The record does not show that a response was made to claimant's telegram of December 28, 1980. On January 6, 1981, claimant was advised by the Division Engineer:

Rule 48(k), a part of the discipline and grievance rule of the applicable agreement reads:



On January 12, 1981, the Local Chairman of the organization requested a formal hearing under the Discipline and Grievance Rule in behalf of claimant. On January 15, 1981, the Division Engineer responded in part:

        "Please refer to Rule 48(k) and Rule 48(m), which read as follows:


        RULE 48(k) - 'Employes absenting themselves from their assignments for five (5) consecutive working days without proper authority shall be considered voluntarily forfeiting their seniority rights and employment relationship, unless justifiable reason is shown as to why proper authority was not obtained.'


        RULE 48(m) - 'The Carrier will be under no obligation to give an employe a formal hearing where the employe's relationship is terminated under other p Agreement.'


        "Under these terms, the Carrier is not under any obligation to grant a hearing to D°.r. Godoy and, therefore, your request on his behalf is respectfully declined."


The Carrier contends that Paragraphs (k)'and (m) of Rule 48 are exempt from the formal hearing requirements. The Board agrees with this interpretation. Rule 48(k) is self-executing. This interpretation is strictly in accord with the first sentence of Rule 48(a) of the Discipline and Grievance Rule, which . reads:

        "(a) Except as provided in Paragraphs (k), (1), and (m) of this provision, an employe who has been in service more than sixty (60) calendar days, whose application has not been disapproved, shall not be dismissed or othe


We do not consider Rule 48(1) as applicable. Its application is confined to the specific conditions
In the on-property handling, and in their respective submissions to this Board, the Carrier has steadfastly maintained that the claim does not involve the realm of disc steadfast in its argument that Carrier's application of Rule 48(k) was tantamount to the disciplinar process on the property for disciplinary and non-disciplinary cases is different, disciplinary cases Carrier goes on to cohtend that the appeal of the dispute to the Chief Engineer was improper. The question is, to say the least, close. However, Rule 48(k)
                      Award Number 24413 Page 3

                      Docket Number W-24605


being a part of the Disciplinary and Grievance Rule, and being specifically excepted from the requirements of Rule 48(a), the Boar concludes that the dispute must necessarily be considered a disciplinary case.

 On January 30, 1981, Assistant Chairman J. V. Larsen, in filing the initial claim in behalf of claimant furnished a letter from Dr. Jeses R. Oldvas B., written in Spanish, describing claimant's condition. It would seem that if the Assistant Chairman was attempting to furnish a reason for claimant's absence, he would have furnished a translated copy of the letter from the doctor. On the other hand, it would appear that if the Carrier were seriously interested in determining whether or not claimant was actually ill, and the seriousness of the illness, it would not have been an insurmountable task for it to have had the letter translated.

 In the appeal on the property, the General Chairman also pointed out to the Chief Engineer, that claimant, in an effort to explain his absence completely, contacted Los Angeles by telephone.

 In his appeal to the Chief Engineer, the General Chairman also stated in part:

        "In a letter dated February 20, 1981, Mr. Wengert declined such reinstatement and payment of this claim. We cannot accept Mr. Wengert's decision of denial on the basis as contained in his letter dated Februs_ry 20, 1981 and by copy of this letter to Mr. Wengert, he is advised that his decision of denial is, hereby, being rejected."


In response the Chief Engineer took the position that the dispute involved a non-disciplinary matter and was improperly appealed to his office, which issue we have previously disposed of. The Chief Engineer also took the position:

        "Moreover, a review of my file indicates that Assistant Chairman Larsen failed to furnish Division Engineer Wengert written notification of the rejection of his decision. Failing to furnish such written notification within the time period set forth in Rule 49 likewise renders the claim invalid."


Subsequently the Carrier submitted a number of letters supporting its position as to practice and the General Chairman submitted copies supporting his position so far concerned. This issue has previously been decided between the same parties. See recent Award No. 24358, the awards cited therein, and Decision No. 14 of the National Disputes Committee, dated Chicago, Illinois, March 17, 1965· The record indicates that on June 19, 1981, the parties entered into a letter Agreement specifying just how claims arising on and after that date would be handled.
                      Award Number 24413 Page 4

                      Docket Number MSS-24605


In a letter dated November 27, 1981, following a conference with the General Chairman the Chief Engineer explained that claimant called the Division Engineer's office on January 5, 1981, eight days after his telegram dated December 28, 1980, and talked to a clerk in that office who then indicated that, to the best of her knowledge, claimant's reasons for his continued absence was because of (1) car trouble or (2) his mother's illness, and that no mention was made of claimant's ill health or that he had otherwise been very sick. Also, an employe at Los Angeles interpreted Dr. Olives' note of December 28, 1980, which explained claimant's illness as akin to a sore throat. In that conference, the Carrier offered, in consideration of claimant's length of service in complete disposition of the claim, to restore claimant's seniority rights in Groups 8, 17 and 18 as follows:

        ~~ G7~ASS

        Group (a) b c

        8 - 8-14-72 8-14-72

        17 1-13-69 - -

        18 11-4-65 - - ".


On December 23, 1981, the General Chairman advised that claimant had rejected the proposed settlement. He also presented at that time a translated statement of Dr. Olives. This translation of Dr. Oljvas' st=atement reads:

        "TO WHCx: IT MAY CONCERN:


        This is to certify that Mr. Raul Godoy gapera (?) have been under (?) medical care by the undersigned and initially treated for a cold which started on December 27., 1980. This illness became afterward into a bronchitis of which he felt after much better and relief on January 4, 1981. He was treated with antibiotics, pulmonary widers and spectorants.


        At the request of the interested party this certificate is issued in the city of Culincan, Sin. an January 4, 1981."


The ;terrier's offer of reinstatement of claimant was reiterated on December 30, 1981, and again rejected.

 There is nothing in Dr. Olivas' statement of January 4, 1981, that claimant was too ill to travel, or contact his superior officers at the expiration of his vacation p Engineer's actions of January 6, 1981 as hasty, considering claimant's telegram of December 28, 1930, his telephone call of January 5, 1981, and the statement of Dr. Olives dated December 28, 1980, which the Carrier did not see fit to have interpreted. Depriving a long-term employe of his source of livelihood is a serious matter.
 Award id~,r3ber 24413
 Docket Number MW-24605

 Page 5

 Based upon the entire record, the Board concludes that the proper resolution of the dispute is to award that claimant be restored to the service of the Carrier with seniority and other -rights unimpaired, but without compensation
        FIl`DTIQGS: 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 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 claimant's termination was excessive.
Claim sustained in accordance with the opinion.

 NATIONAL RAILROAD ADJUS3IL_IT BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary
 National Railroad Adjustment Board

 By

 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 15th day of June 1983.