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:


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.



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
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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:



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
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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
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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.






                          By Order of Third Division


Attest:
        Nancy J. e - Executive Secretary


Dated at Chicago, Illinois, tais 21st day of October 1992.