Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28139
THIRD DIVISION Docket No. MW-27830
89-3-87-3-332
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union 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 Steel Bridgeman Welder D. L. Means (System File
D-65/013-210-48).
(2) The claimant shall be reinstated with seniority and all other
rights unimpaired and he shall be compensated for all wage loss suffered as a
consequence of the violation referred to in Part (1) hereof."
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.
Claimant was involved in an automobile accident on the way to work on
January 8, 1986. He worked that day and part of January 9, being released two
hours early for a medical examination. He was given Friday, January 10, off
as a personal leave day. On Saturday, January 11, he asked his Supervisor for
time off. It is unclear whether the request was made for medical reasons or
for purposes of conducting business related to the accident but the Supervisor
told Claimant he would not be allowed time off for personal reasons but would
be given off January 13 through 17, 1986, for medical reasons.
Claimant did not report or contact Carrier on January 20 through 24,
1986, and on January 24, he was notified by letter:
Form 1
Page 2
Award No. 28139
Docket No. MW-27830
89-3-87-3-332
"This is to advise that the Company's records
indicate that you have been absent from the
service without proper authority for the
following five (5) consecutive workday period:
January 20, 21, 22, 23 and 24, 1986
Rule 48(k) of the Agreement between the Carrier
and the organization reads as follows:
Employees absenting themselves from their
assignments for five (5) consecutive days
without proper authority shall be considered
as voluntarily forfeiting their seniority
rights and employment relationship, unless
justifiable reason is shown as to why proper
authority was not obtained."
On January 25, 1986, the Supervisor contacted Claimant's physician.
He was told Claimant had changed a January 18 appointment to January 20 and
would next be seen on January 27. He asked the doctor to have Claimant call
him.
During handling on the property, medical reports were furnished
including the following dated March 10, 1986 from Claimant's Doctor:
"David Means has been under my treatment following an accident. On January 20 I prescribed
Perocet - 5 for him for control of pain. He
took the medication as prescribed for approximately four days time, and I advised him that
while on the medication, he should not work
around machinery, and he was therefore unable to
work from January 20 through January 24."
Claimant requested a conference which was scheduled for February 18,
1986, however he was taking a vacation from February 15 to March 2 so the
conference was rescheduled for March 8.
Records introduced on the property show Claimant, who entered service
in 1971, had been granted a Leave of Absence from January 3, 1978, to February
3, 1978, which was extended monthly until September 3, 1978. The record
further reflects Leaves of Absence from June 12, 1979, to July 13, 1979; from
May 28, 1981, to June 28, 1981; from September 13, 1982, to October 13, 1982,
extended to November 1, 1982; and from November 5, 1983, to December 4, 1983,
extended monthly to November 28, 1984.
Form 1 Award No. 28139
Page 3 Docket No. MW-27830
89-3-87-3-332
The organization argues Claimant's inability to work was documented
and this constituted a "justifiable reason" within the meaning of Rule 48(k).
It is clear the justifiable reason provision of 48(k) refers to "why proper
authority was not obtained" rather than to ability to perform work. The
organization also contends the March 10, 1986 letter from Claimant's Doctor
infers Claimant's decision-making abilities were impaired and this too constituted a justifiable rea
statement in such a strained manner.
Claimant was a relatively long service employee which is often a
mitigating factor in discipline cases. However, we have frequently held Rule
48(k) and similar Rules are self-invoking and not disciplinary in nature.
Third Division Awards 24218, 25837. We also note Claimant had several Leaves
of Absence in the past, some of which were lengthy and extended on a monthly
basis. Thus he knew what was required to extend his Leave.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy
J.)X
v - Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1989.