This dispute arose ~%hen the Claimant, a mechanic at the d:anton Maintenance of Way Shop, had requested and Has granted a medical leave of absence to undergo drug and alcohol treatment from his personal physician. When the Carrier discovered that the Claimant was in fact incarcerated and receiving his rehabilitation at what the Carrier considered to be a court-referred detention center, it notified the Claimant that incarceration was not a valid excuse for absence, and therefore, he had forfeited his seniority rights. The Claimant was dismissed from the Carrier's service. The Organization appealed the Carrier's discipline but the appeal was denied.

This Board has thoroughly re% ie" ed the record in this case and we must find that although the Carrier has terminated the Claimant's seniority pursuant to Rule 28(b) relating to uneicused absences of more than 14 days, this Board must find that the Carrier acted prematurely and the claim must be sustained in part.

The Carrier claims that the Claimant simply did not show up for work and, therefore, after 14 days, the Carrier had an automatic right to forfeit the Cla'imant's seniority under the self-executing principle set forth in Rule 28(b). The Carrier contends further that the Claimant was in a court-referred detention facility and incarceration is no excuse for not coming to work. The Carrier then believed that it had a right to exercise its authority under Rule 28(b) and terminate the Claimant when he had not shown up for work within 14 days.

The Organization contends that the Claimant was not incarcerated but had voluntarily checked himself into a rehabilitation center to deal with some illnesses from which he was suffering. The Organization argues that the Claimant, who had enjoyed 18 years of service for the Carrier, applied for and received a leave of absence for the physical ailment and, therefore, he could not have voluntarily forfeited his seniority rights pursuant to Rule 28(b). The Organization contends that the leave was "approved" and that the Carrier acknowledged that when it postponed a scheduled hearing until such time as the Claimant returned to active duty.

Although this Board recognizes the need for the Carrier to exercise its rights under 28(b) on numerous occasions because it is impossible for the Carrier to track down and hold a hearing relating to une=ctued absences for "walkaways" and other employees to fail to come to work, there are occasions when it is important for a hearing to be held when the facts do not support the requirements of Rule 28(b). This is one of those cases.

.although the Organization contends that the Claimant was approved for a leave of absence. the record in this case does not show such approval. There is the recognition that the Claimant i% as off work and there was a postponement of a hearing, but there is nothing in this file before the Board ,%hicb indicates that the Claimant bad been approved to be on a leave of absence.

However, on the other hand, there is nothing in the file that supports the Carrier's position that the Claimant was in a court-referred detention facility and, therefore, %%as in a situation similar to being incarcerated. There are numerous statements from representatives of Oriana House, Ins. that state that the Claimant was in the treatment facility during the time that he was off work. There is also a statement that he may return to work without restriction. The Carrier was aware that the Claimant was in the facility receiving treatment at the time it terminated his employment. This is not a walkaway case: this is not a case where the utilization of Rule 28 which is entitled, "Absent without permission", is appropriate. As a matter of fact, Rule 28(b) begins by stating, "Except for sickness or disability, or under circumstances beyond his control... " If the Carrier has proof that the Claimant was incarcerated or being held in a court-referred detention situation, then that is the type of information that should be presented at a hearing. Similarly, if the Claimant has documentation to show that he was properly on a leave of absence, then that is the type of evidence that should be presented at a hearing.

This Board finds that the Carrier's forfeiture of the Claimant's seniority pursuant to Rule 23(b) was improper in light of the unusual facts in this case. The Board finds that the claim must be sustained in part and the Claimant's seniority reinstated. However, the Carrier still has a right to proceed against the Claimant pursuant to its disciplinary processes and hold a hearing to determine whether the Claimant was incarcerated in a rehabilitation center or whether, as the Organization states, he was merely off on a leave of absence receiving treatment for a physical disability.

As stated above, there is a definite reason for Rule 28(b). However, it cannot be imposed when there is some question as to whether the Claimant is properly off on disability as there was raised in this case. The claim is sustained in part. The Claimant's seniority shall be reinstated, but he shall receive no backpay and he shall not be immediately reinstated to employment on the job. The Carrier has a right to proceed pursuant to the disciplinary rules and hold a hearing to determine whether the Claimant

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