Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28308
THIRD DIVISION Docket No. MS-27733
90-3-87-3-365
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(Willie Bady
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
"Under Rule 21A, whether Mr. Bady improperly absented himself from
work for fourteen (14) or more consecutive days without properly notifying his
supervisor. Mr. Bady contends that he was unable to work do (sic) to a physical disability, and that
of possible dismissal were inadequate. Mr. Bady brings this action in Appeal
under the procedures of Rule 74."
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 record indicates that Petitioner suffered an on-the-job injury on
December 17, 1985. He injured the ring finger of his left hand. According to
Petitioner, he was under a physician's care until March 4, 1986, due to that
injury. The record indicates further that Claimant made no contact with Carrier subsequent to his in
letter dated February 21, 1986, which invoked the provisions of Rule 21-A.
That Rule provides:
"ABSENT WITHOUT PERMISSION
Employees who absent themselves from work for
fourteen (14) consecutive days without notifying
their supervisor shall be considered as having
resigned from the service and will be removed
Form 1 Award No. 28308
Page 2 Docket No. MS-27733
90-3-87-3-365
from the seniority roster unless they furnish
the Carrier documented evidence of either physical incapacity or that circumstances beyond
their control prevented such notification. In
the absence of the supervisor, the employee
shall notify the office of the Division Engineer
of the division on which last assigned."
It appears further that Carrier sent Claimant certified letters on
January 17 and 27, 1986, in an effort to ascertain his status and arrange for
a physical examination. Both letters were returned unclaimed. The letter
(to the same address) of February 21, 1986, resulted in a meeting on March 5,
1986, during which Claimant presented a letter from his physician which stated:
"This is to certify that William Bady has been
under my care since his accident December 17,
1985 and may return to work on March 7, 1986."
That letter was dated March 4, 1986.
The Organization contends that Carrier's action in terminating Claimant was harsh and improper.
not given proper notice of the required physical examinations and therefore
Carrier acted improperly in invoking the provisions of Rule 21-A. It is also
argued that Carrier was aware of Claimant's condition since it was caused by
an onduty incurred injury.
Carrier makes a number of procedural arguments with respect to the
handling of this Claim on the property. More importantly, Carrier argues that
Claimant was properly considered to have resigned from service in accordance
with Rule 21-A since he absented himself from service for more than 14 consecutive days without noti
there was no evidence presented that Claimant was prevented from notifying his
supervisor of his absence and status due to physical incapacity or other circumstances beyond his co
In view of the Board's findings with respect to the merits, it would
serve no useful purpose to deal with the procedural arguments.
It is the Board's view that Carrier properly considered Claimant as
having resigned from service when he failed to notify his supervisor of his
status and absented himself for fourteen consecutive days. Claimant has not
presented any evidence that he was physically unable to provide such notice or
that he was prevented from giving such notice by circumstances beyond his control (see Third Divisio
does not absolve him from the responsibility to notify his supervisor of his
absence. Contrary to the Organization's position with respect to the nonreceipt of the two certified
this case was Claimant's failure to abide by his contractual obligations, not
any alleged failure of the Carrier. Rule 21-A has self-invoking provisions
and penalty. The Claim must be denied.
Form 1 Award No. 28308
Page 3 Docket No. MS-27733
90-3-87-3-365
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
00,
Attest: .0 z
4aZnlclyl~v -Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1990.