PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of













Carrier raises a procedural point in challenging the claim as not sufficiently definite to qualify for consideration. It is contended the claim fails to describe the nature of the dispute and does not ask for remedy of relief. On consideration of this point the Board recognizes that the claim is simply stated as an appeal of the dismissal of J. W. Ferneding. However, there was no doubt on either side during the handling of the dispute on the property as to the position of the Brotherhood.
It consistently insisted throughout, that the dismissal action was excessive, and sought claimant's reinstatement. There was nothing hypothetical, general or speculative in its approach to settlement of the grievance. If there should be any further doubt as to the validity of the claim it is removed by the fact that during the appeal of the case to the Senior Director, Labor Relations, the highest officer of the carrier authorized to handle such disputes, an offer of reinstatement was made. While such a.^. offer does not serve to prejudice carrier position it illustrates that the dispute was progressed on merit during the appeals process and was not rejected on procedural grounds.


The hearing date, orginally set for March 19, 1981,.was postponed, rescheduled for April 23, 1981, and postponed again until May 7, 1981. During that period, Local Chairman McClure made the following request to claimant's Supervisor:
        "We would like to request a postponement until Mr. Ferneding is able to return to work from his illness. At which time you will be notified."


Reply to his request was not made by the Supervisor but, instead was issued over the signature of J. R. Mangus, Assistant Division Superi.itendent. The reply was dated March 23, 1981 and is quoted in part as follows:
        "Your hearing *** has been postponed, per request of your Local Chairman, T. M. McClure, account of your inability to attend on the date scheduled.


        No date and time has been scheduled as of this date. You will be notified of rescheduled date and time when you are able to return to duty. "


Despite the above statement, that hearing would be rescheduled when claimant was able to return to duty, such was not done. Instead, Mr. Mangus notified claimant on April 16 that the hearing date was reset for May 7. Mr. Hendershot, claimant's supervisor testified during the hearing which was held on May 7, that he knew of the statement that hearing would be postponed until claimant was able to return to work. Coupled with this is a statement dated March 10, 1981 by Michael A. Gureasko, M.D. stating that Mr. Ferneding was under his care "for a nervous condition which prevented him from working. At this time I cannot determine when he will be ready to resume work."
The hearing was held (in absentia) on May 7 as rescheduled. Claimant was represented by Local Chaianan McClure. At the outset he objected to holding the hearing in absentia, stating claimant's attorney had called the previous evening requesting a postponement. The carrier officer in charge declined the request and proceeded to hold the hearing in absentia. Mr. Ferneding was still not working as of the date of the hearing. Carrier dismissal notice was issued on may 18, 1981.

 The claim was handled through the usual appeal channels required by law. Claimant's guilt of the charges was admitted by the Organization and appeal was on the grounds dismissal was excessive. During the appeals process which continued until February 1983, no further objection was raised by the union as to the hearing being held in absentia or on the matter of postponements.
                    Award Number 24749 Page 3

                    Locket Number SG-25138


It is noted that J. R. Walsh, Senior Director-Labor Relations, by letter of June 28, 1982, acting on appeal by General Chairman Britcher, proposed to return claimant to service subject to the following conditions:
            01. Restoration is to be on a leniency basis, ie., no pay for lost time and no further appeal is to be made.


          2. The appellant will undergo a thorough return to service physical examination and pass same before being allowed to return to service.


          3. The appellant, if he passes the physical examination, will be interviewed by the Superintendent before returning to service.


        4. If returned to service, the appellant shall be restricted to

        jobs in which he will be working with a Foreman or some supervision,

        but not alone."


The above offer was rejected by claimant on the grounds it was unduly harsh and excessive. Accordingly, further appeals on the property were discontinued in favor of referring the case to this Division for final determination.
Charges of misrepresentation, falsification of reports and wrongly accusing another employee are serious in the extreme and in normal cases would justify dismissal without question. There are, however, mitigations in this case arising out of the manner of the hearings. True, there were a number of postponements but in the final analysis the hearing was held in absentia despite the carrier commitment to postpone the hearing until the claimant was able to return to work. At the start of the hearing the representative of the Brotherhood reminded the hearing officer of the commitment and requested another postponement but his request was denied. For these reasons we are of the opinion that claimant should be reinstated without pay for time lost, subject to successfully passing a physical examination as originally proffered. We are of the opinion this approach takes into account the seriousness of claimants offenses, allows a review of his physical condition and ability to resume work and recognizes irregularities in the circumstances under which the hearing was conducted.
        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 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 discipline was excessive.

                      Award Number 24749 Page 4

                    Locket Number SG-25138

                    A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD AL17USTMENT BOARD

                            By Order of Third Division


Attest. ~__
 Nan jd: Dever - Executive Secretary
Dated at Chicago, Illinois this 30th day of March, 1984.
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