Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26781
THIRD DIVISION Docket No. MW-27169
88-3-86-3-241
The Third Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company (formerly Chicago, Milwaukee,
(St. Paul and Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly closed
the service record of Extra Gang Laborer L. D. Hardimon (System File C //1485/D-2655).
(2) The claimant's seniority as Extra Gang Laborer shall be restored
unimpaired, he shall be reinstated and compensted for all wage loss suffered."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant held seniority as an extra gang laborer on the date of
this dispute. On June 22, 1984, the Carrier notified the Claimant that he had
voluntarily forfeited his seniority. The Carrier contends that the Claimant
knowlingly refused to protect his assignment, because he took a leave of
absence other than as prescribed by Schedule Rules when he absented himself
from his assignment without authority on June 19, 20, 21, and 22, 1984.
In May, 1982, the Claimant sustained an on-duty personal injury.
Effective August 22, 1983, the Claimant was released by his physician to perform limited or light du
physical examination ordered by the Carrier, the Claimant was notified that no
medical restrictions had been placed on his ability to work. There is no
evidence that the Claimant raised any objection to this determination of his
medical fitness to work prior to being recalled.
Form 1 Award No. 26781
Page 2 Docket No. MW-27165
88-3-86-3-241
Upon being recalled to work on June 19, 1984, the Claimant stated
that he could only work on a restricted basis and presented a medical note,
dated August 17, 1983, in support of his contention. Although the March,
1984, unrestricted work certification was reconfirmed for the Claimant on June
19, 1984, the Claimant nevertheless did not report for his scheduled work on
June 19, 1984, or on any of the subsequent days.
The Claimant has produced no evidence that would diminish the controlling nature of the March 18
17, 1983. The physician notes of June 28, 1984 and July 19, 1984, submitted
by the Claimant are vague and of little or no evidentiary value. There is
substantial evidence from which to conclude that the Claimant failed to protect his assignment upon
himself to dismissal.
It is appropriate for this Board to consider the Claimant's past
record in determining whether dismissal is fair and reasonable, given the
circumstances of this case. A return to service with seniority unimpaired bu
without backpay would achieve the intended purpose of discipline in this
matter.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
01
Attest:
Nancy J Wver - Executive Secretary
Dated at Chicago, Illinois, this 28th day of January 1988.
CARRIER MEMBERS' DISSENT
TO
AWARD 26781, DOCKET MW-27169
(Referee Miller)
The Majority directs the reinstatement of Claimant on the
erroneous premise that the Carrier's action constituted
discipline and that dismissal was excessive discipline. The
record on the property, however, shows that Claimant forfeited
his seniority when he failed to respond to a recall following his
recovery from a medical disability. The Board has consistently
held that such forfeiture is automatic and does not constitute
discipline. See, for example, Third Division Awards: 26240,
25841, 25837.
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