PARTIES TO DISPUTE:

      Brotherhood of Maintenance of Way Employees vs Norfolk and Western Railway Company


STATEMENT OF CLAIM:
      1. The Carrier violated the effective Agreement dated February 1, 1951, when it withheld cls imaat James Kelly from service without a fair and impartial hearing.


      2. For the above-cited viflation the Carrier now be required to compensate thaclaimant foe all time loot, between the period from June 21, 1976, until he was notified by ths,Corriar to report for duty on September 7, 1976.


FINDINGS:
This Board upon the whole record and all the evidence finds the:

 The Carrier and the employee involved in this dispute are respectively Carrier and employee within the meaning of the Railway Labor Act, as amended.
      This Hoard has jurisdiction over the dispute involved herein.

OPINION:
      Beginning June Zl, 1976, the Claimant, an Extra Gang Laborer,

was away from duty. Such non-work statue continued until Septem-
 ber 7, 1976. As of that data, the Claimant was returned to
                                    AWD.~NO. 40

                                    CASE N0. 40

                                    · Page 2


service after intervention by the Organization on his behalf.
 Varying, conflicting renditions of the events that prompted the Claimant's departure prevail in this case: one such version (by the Claimant) was that he had sustained an on-the-job ipjury which necessitated his non-work status. Another version, by the Claimant or Organization, was to the effect that the Claimand and supervisor had a disagreement and he was taken out of service. The Carrier's version was that the Claimant left active duty on his own account without explanation.

 None of these versions is fully satisfactory. If the
 Claimant sustained an on-the-job injury, the supervisor was
 obliged to complete necessary forms and report his status to
 higher authority. Conversely, the Claimant should have been
 able to substantiate such an injury. If, in reference to version
 two, the Carrier bad suspended or dismissed the Claimant, he
 should have boon able to pnoduce sam. proof of such action; or,
 assuming such formal action was not taken, it was incumbent upon
 the Claimant to protest such action through the grievance pro
 cedure. (The Organization contends error on the Carrier's part
 for not having scheduled a formal hearing within ten days from
 June 21, 1976; this presumes a disciplinary action was taken -
 which the Carrier denied.) If, on the other hand, version three
 (as asserted by the Carrier) prevailed, why the delay on its part
 - 2-

                                          two `~ -W7

                                    PLB-1837

                                    AWD. N0. 40

                                    CASE N0. 40

                                    40 Page 3


in ascertaining the Claimant's status?
 On a review of the record as a whole, this Board finds no support for the contention that the Claimant was removed. We are less convinced that his withdrawal was voluntary and without some motivation, however. If it can be demonstrated that the Claimant suffered an on-the-job injury, which prevented his performance and for which he was required to receive treatment, than a claim for compensation for that time during which the Claimant could have worked after treatment would be meritorious and necessary-to comply with applicable Regulations. The burden must issue to the Claimant/Organization to establish such a basis, however.
 This Hoard reads this matter back to the parties for considsratioa. If such action is not commenced within thirty days from receipt; of this Opinion and Award, it shall be held null and void.

 AWARD:
 The claim is denied except where a showing can be made of non-compliance with applicable Regulations insofar as on-chejob injury is concerned.

                James F. Scearce

                Neutral Member


G.C. Edwards W. E. LaRue
 Carrier Member Organization Member
 Dated at this - day of
 -3- qwD SID- t r637
                            NICKEL PLATE,gWIE ERIE AND WESTERN, AND CLOVER LEAF DIFFRICTS


                      AMENDMENT TO

                      Case Number 40


                      (MW-MUN 76-14)


This case was remanded back to the parties for consideration but, despite efforts to reconcile differences on the Claimant's status, the parties were unable to reach such accord and now asks this Board to dispose of this matter.
 On review of this case, we find that sufficient doubt exists that the Claimant willingly left duty without some compulsion to do so. On the other hand, we find no proof that a disciplinary action was involved. In sum, we conclude that the Claimant's uncertainty of' status was predicated upon incomplete communication on both his and the supervisor's part. Under such circumstances we order compensation for the Claimant from
 August 17, 1976 until his return to duty in September of 1976 at appropriate straight-time rate at that time. The August date represents the date when a positive step was taken to determine the Claimant's status.

                        !N

                    (JJames F. Scearce

                    Neutral Member


E. N. Ja obs, Jr.' William E. LaRue
 Carrier Member Employee Member
 Dated ~V;: ~~i_ at

                                              ,hwo 40. i$3~