Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27005
THIRD DIVISION Docket No. MW-27554
88-3-86-3-820
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
(Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Track Laborer E. Allen, Jr. for alleged '***
violation of Rule M810 ***' when he
'...
left the job after working two hours
***' on September 18, 1985 was without just and sufficient cause, arbitrary
and on the basis of unproven charges (System File MW-85-153/443-3-A).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired, his record shall be cleared of the charges leveled against
him and he shall be compensated 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 were given due notice of hearing thereon.
This dispute is one of two cases now pending before our Board involving the Claimant. The other
27006.
On September 18, 1985, Claimant reported for work as a track laborer
on Extra Gang 53. After working two hours he claims that he told his Track
Foreman that his hands were developing blisters. Shortly thereafter he left
the job site. He has not worked for the Carrier since that date.
Form 1 Award No. 27005
Page 2 Docket No. MW-27554
88-3-86-3-820
About a month after leaving the job, on October 21, 1985, Carrier's
Division Engineer forwarded a letter to Claimant alleging that he was absent
without authority. He was instructed to report to his job assignment as soon
as possible for return-to-duty instructions. Claimant did not respond to this
request during the following week.
On October 29, 1985, Carrier charged Claimant with being absent from
his job since September 18, 1985, in violation of Rule M810. This notice
scheduled a formal investigation for November 11, 1985. At the investigation
Claimant was present and testified. He was represented by an officer of the
Organization. Following the investigation, Claimant was notified that he was
dismissed.
It is our view that adequate evidence and testimony exists in the
investigation transcript to demonstrate that Claimant was in violation of Rule
M810 on September 18, 1985, and thereafter, when he left the work site without
permission and remained away for over a month. It is clear, from the evidence, that the only Supervi
his job was his Track Foreman. Statements by both are in accord that the
Track Foreman did not give Claimant permission to leave. In fact this Foreman
was not cloaked with authority to allow Claimant permission to leave the job
site.
There is evidence in the investigation transcript that two other
Supervisors were at the site at the time, one a General Foreman and the other
a Roadmaster. Both are authorized to allow employees to leave work. However,
Claimant admits that he did not talk to or request permission of either to
layoff or leave work that date.
The Claimant claims that he left the job site after unsuccessfully
trying to work with blistered hands. His purpose in leaving was to seek
immediate medical attention. At the investigation he submitted documents to
support this contention. We have carefully examined the material submitted
and find it defective for this purpose. For example one item of medical
evidence indicates that Claimant visited a doctor on September 19, 1985, the
day after he left work, ostensibly seeking immediate medical attention for
blisters. This document, under the category of "History," indicates that the
complaint generating the visit occurred on September 17, 1985, not September
18. Also, the stated diagnosis is not blisters but "Possible carpal tunnel
syndrome." This syndrome results from a complaint quite dissimilar to blisters caused from using a p
point at which it goes through the carpal tunnel of the wrist causing soreness, tenderness and weakn
This is noteworthy for several reasons. The document deals with a
Surgeon's examination of Claimant's hands, or at least one hand. It does not
make a single reference to blisters. The examining Surgeon made a detailed
effort to describe Claimant's complaint on pain in his hand and wrist but
makes no mention of blisters or any flesh or skin abnormalities or complaints.
Form 1 Award No. 27005
Page 3 Docket No. MW-27554
88-3-86-3-820
One would think that if an individual was suffering from blisters, so severe
as to require leaving his job to seek medical attention, that he would have
mentioned the condition to the examining Surgeon as part of his complaint.
Also, a trained medical practitioner examining hands of a patient the day
after he was prevented from working because of blisters would have noticed the
condition and made some type of notation about it.
Accordingly, it is our view that the evidence submitted by Claimant
and his testimony simply do not support his version of the event. It is our
view that Carrier has established a violation of its Rule M810 and that
Claimant has not demonstrated that he had permission to be absent. Also he
has not demonstrated that there were compelling medical conditions that prevent him from working or
Many Awards of this Division have held that employees that have
remained away from work for extended periods of time without authority need
not be continued in service. The Claimant is not a stranger to Rule M810. In
six years of employment he has had three prior entries in his service record
concerning violations of this Rule. The first resulted in 30 demerits. The
second a 4 day suspension. The third resulted in dismissal, after which he
was later reinstated on a leniency basis, but without pay for time lost.
Under these circumstances discipline of dismissal for this most recent established breach of Rule M8
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
' de -
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of April 1988.