_ ' Ai'iARD NO. 87

Case No. 102

.PUBLIC LAN BOARD N0. 1582

P?.TIES) THE ATC-HISON, TOPEKA AND SANTA FE RAILWAY COMPANY' TO ) DISPU'f ) BROTIM.R.":OOD OF 11AINTENANCE OF WAY E~u LOYEZS

STATEMENT OF CLAM: Claim in behalf of J. L. Smith for =einstate=ent to rzs former position as Trackman on the Middle Division with seniority, vacation and all other, rights unimpaired and ecmpensation fcr any wage loss he may have as a result of his removal from service on September 12, 1977.

FINDINGS: This Public Law Board No. 1582 finds that the parties _

_e=aiz are Carrier and Employee within the meaning of the Railway

Labor Act, as amended, and that this Board has jurisdiction.

In this dispute the claimant sustained an injury to the ring finger chis right hand while performing se=-vLce on the extra gang. As a result of the injury the claimant had to have the finger amputated cne-fourth inch from the tip. Surgery was performed on July 7, 1977.

On July 8, 1977 the roadmaster visited with the claimant and inquired as to how he was doing and how long he would be off work. Claimant `.sited with the doctor July 8, 1977, and the doctor advised him he would be off work for at least two weeks and it might be as long as s°_x weeks before he could resume his normal duties. The claLmant called the roadmaster and advised him what the doctor had reported.

::° roadmaster advised the claimant not to worry and to come back to Vrork e;hez he could.

Agpraimately two weeks later the claimant reported to the doctor's office and found the safety supervisor present, and the safety supervisor inauired of the doctor if the claimant was able to return to &U y. Tae doctor replied there was considerable drainage and that he ^-asn't sure when the claimant could return to work.

:e claimant remained off work with his injury because he stated that

there was considerable drainage and soreness from his finger. The

claimant again visited the doctor and thereafter on Au;ust 13, 1977

reported to his position as a trackman at Oklahoma City, Oklahoma but

%,.,as advised that he could not return to work.

r

A formal investigation was finally held on September 12, 1977. The

Assistant General Chairman was present at the direction of the Gen

eral Chairman to represent the claimant but was refused admission on

the basis that the Carrier had no notice that the claimant desired

s_ch representation.

T:He claimant did not appear for the investigation and contends that h: did mot receive the notice to attend the investigation until

I

~-e-)te=ber 19, 1977.

PLG 581 Award No. 87

Page 2

' Case No. 102

There is much that could be said about the handling of this case. A_°t=r a careful consideration of all the facts and circi=stances, it is aooarent that there is fault on both sides. The claimant failed to obtain a leave of absence, Form 1515. At the same tie it is recognized that the Carrier knew the reason why the claimant

. . was absent, and it is the opinion of the Board that the discipline assessed herein is harsh, arbitrary and unjust.

Any discipline -in excess of six months is too severe, and it is the finding of the Board that the claimant should be reinstated with seniority and all other rights unimpaired and be paid for time lost c=mencing six months from August 18, 1977. It is recognized that t`_^_e claimant was discharged on September 12, 1977. However, he attempted to report for work'-on August 18, 1977, and therefore it is the opinion of the Board that the six months should commence running as of that time.

A~ARD : Claim sustained as per above. E

0°MER : The Carrier is directed to comply with this award within t EEr zy daysfrom the date of this award.

77

reston J, .:rioore, tnairman

~o /

rganization iiemder

arriMe=er

Dated November 27, 1978