Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29420
THIRD DIVISION Docket No. MW-29378
92-3-90-3-300
The Third Division consisted of the regular members and in
addition Referee Thomas J. DiLauro when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
SCATEMENT OF CLAIM: ":lain
D:
-he System Committee of the Brotherhood that:
(1) 'he Agreement :as violated when the Carrier Improperly terminated Laborer D. L. '_Lpper.en's
being
'...
absent from y)ur :ssignment without proper authority for the
following five (3) co,ise-::_:e workdays 24, 25, 26, 27, 28 in July of 1989.'
(System File D-1371890657).
(2) As a consequence of the violation referred to in Part (1) above,
the Claimant shah be retur7ed to service with benefits and all other rights
unimpaired, he shall nave his personal record cleared of the charge leveled
against him and he shall be compensated for all time Lost."
FINDINGS:
The Third Division o_ 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 t^.e .adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On October 11, 1983, the Carrier hired the Claimant as an Extra Gang
Laborer. During July 1989, _ne Claimant worked as an Extra Gang Laborer on
Gang 9012.
The Claimant was absent from work during the week of July 24, 1989,
allegedly due to a col3n Ln:ection. The Claimant attempted to contact his
Supervisor to obtain permission to absent himself from work. When he was
unable to reach the Supervisor, the Claimant telephoned the NPS Specialist at
the toll-free number provided by the Carrier. The Claimant asked the NPS
Specialist to convey the message concerning his illness to the gang. The NPS
Specialist conveyed tthe message.
Form 1 Award
No.
29420
Page 2 Docket
No.
MW-29378
92-3-90-3-300
On July 28, 1989, the Supervisor wrote the Claimant a letter advising
him that he was considered as voluntarily forfeiting his seniority rights and
employment relationship pursuant to Rule 48(k) of the Agreement because he had
been absent without authority from his assignment July 24, 25, 26, 27, 28,
1989. Rule 48(k) provides:
"Employees .absenting themselves from their assignment
for five (5) consecutive working days without proper
authority shall Se considered as voluntarily forfeiting their ,eniori-! rights and employment relati
why proper authority was not obtained."
Rule 48(k) is characterized as a self-executing provision.
In response to the Supervisor's letter, the Claimant provided two
medical statements on August :1, 1989, allegedly verifying his need to be
absent from work prom July _'-, 1989, until .July 27, 1989. The Claimant provided additional -edical
The first issue before the Board is whether the Claimant obtained
proper authority for absenti-.g himself from his assignment for five consecutive days.
The Organization maintains if the NPS Specialist lacked proper
authority to grant permission to be absent from work, she was obligated to
inform the Claimant of that fact. In support of this argument, the Organization relies on the theory
that when the agent is working on behalf of the master's business, the master
is responsible for his acts. (Third Division Award 12309). Because the
Carrier's business can only be performed by its agents and servants and as
they were performing work in furtherance of their master's business, the
master is liable. (Third Division Award 1220).
The Carrier maintains its application of Rule 48(k) was proper. The
Carrier asserts that forfeiture of seniority was sanctioned by the application
of a self-invoking Agreement Rule; therefore, the Claimant's forfeiture of
seniority was his own doing when he failed to request and receive proper
authorization for his absences. The Carrier cited Board precedent which held
"that rules, such as Rule 48(k) herein, are self-invoking and discipline was
not involved in this dispute." Third Division Award 24218.
The Carrier argued because the NPS Specialist was not the Claimant's
Supervisor, she lacked authority to grant permission for the Claimant to
absent himself frDm work. The Assistant Foreman testified he personally
instructed the Claimant .)n the proper procedure to follow when reporting an
absence. The Assistant Foreman provided the Claimant with a hierarchical List
of individuals to notify in the event of an absence, and he specifically
stated the GMS telephone number would NOT constitute an excused absence.
Further the Supervisor testified although he was on vacation from work, he
remained at home during the week of July 24, 1989. The Supervisor testified
he never received a telephone call from the Claimant.
Form 1 Award No. 29420
Page 3 Docket No. MW-29378
92-3-90-3-300
With respect to the issue whether the Claimant obtained proper authority for absenting himself f
Board finds the Claimant failed to obtain proper permission. The Board distinguishes the agen
describe the obligations of the master to third parties not to the agent.
Because Rule 48(k) is self-invoking, the forfeiture occurred when the Claimant
absented himself `rom work without proper authority.
The Carrier noted having forfeited his seniority rights under the
self-invoking Rule a8(k), the -laimant's only recourse was to furnish justifiable cause for _aiLing
The Organization argues the Claimant complied with the provisions of
Rule 48(k) because the Claimant demonstrated good and justifiable cause for
his absence because he was iii, suffering from a colon infection. The Organization cites Boars prece
cause for an emp-vee's ,absence from his assignment. The Board characterized
illness as a gooe and sufficient reason (Second Division Award 7754), and
further, the Board has held '=f the person accused can show that he was not
responsible for _-e .absences Because of reasons beyond his control, such as
illness ...he shoi:J r·,ot Se ~_cject to discipline. (Third Division Award
20148).
The Car-.er ,:ontends the three medical statements neither present
justifiable reasons why the -__3imant did not secure proper authority to be
absent nor do t::^.e; provide t.-.e required documentation necessary to justify t'ie
absences. Although the Claimant's last absence was on July 28, 1989, he
failed to provide medical statements until August 11, 1989.
The medial stateme-.ts were provided by a specialist in obstetrics
and gynecology. Despite this specialty, the physician works as a general
practitioner due _o the small size of the community. The first medical statement merely indi_3ted th
July 25, 1989, to July 27, _989, and he was able to return to work. The
Carrier objected to the validity of this statement because it failed to list .i
return to work date or a reason for the medical treatment.
The
Carrier
received a medical statement, dated July 25, 1989, written on a Wheatland Medical Clinic pad. Th
pain in abdomen he cannot work today." The Carrier noted this statement only
addressed one day, and the reason given conflicted with the Claimant's statement to the NPS Speciali
Due to -Se inadequacv of the first two statements, the Carrier requested a third =edical stateme
1989. This statement was written on a "Return to Work or School Certificate."
The statement inc;cated the -_aimant was under the physician's care from July
24, 1989, until :ily 27, 1989, and he was unable to work during this time.
The Carrier pointed to the discrepancy of dates and signatures between the
first and the third medical statements. Further the medical statements
offered no reason for treatment.
Form 1 Award
No.
29420
Page 4 Docket
No.
MW-29378
92-3-90-3-300
The Board is mindful of the fact that in order for a Carrier to
function efficiently and effectively, it must have employees who are "dependable [about] informing t
means of substitutes. Rule 28 has been negotiated by the parties to precisely
handle this ...type of eventuality, and it contains qualifications to cover
conditions of extreme duress". (Second Division Award 9406). Further, all
employees should be aware that if they do not report for work on a punctual
and regular basis, they will Se subject to discipline. (Second Division Award
8796).
The Carrier argues --.ird Division Award 24681 controls this case, and
the Organization argues Award =4681 can be distinguished because the Claimant
in this case provided substantial evidence to support his absences. The Board
adopts the Carrier's interpretation of this precedent because the Board finds
the medical statements provided by the Claimant to be factually insufficient
to provide a justi:iable reason for his absences. Specifically, the medical
statements lacked a specific _iagnosis of the Claimant's condition and the
impact such a diagnosis would have on the Claimant's ability to perform his
usual work.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e - Executive Secretary
Dated at Chicago, Illinois, tais 21st day of October 1992.