pA$ZTIRS y INTEMATIONAL ASSOCIATION oar rACHISISTS AND

A3iROSPUE WORXRR8, DISTRICT 19

DIBPM 3 NA7'IONRL RAILROAD PASSENGER CORPOAATION (AM's)

saA~N2 ~ SIiZ31_i.

"In alrder to make the Claimant [xacbinist R. Richti!r) whole for all time host between Dacemker 29, 1867 and October Ili 1960, a rust the Corporation compensate the Claimant for all days lost or should such compensation be adjus·.=ed accordingly an the basis of the Claimant's absentee record?"

axrmaRCS

The Board, aft%X hearing upon the whole record and all the evidense, finds that the parties herein are Carrier and Employee

within the meaning of the Railway Labor Act, as amahdedr this .Board has jurisdiction over the dispute involved heroin; *ad, the parties were given due notice o! hearing thereon.

The question at issue arises frog, action which the t?ea Carrier had taken in application of Rule ZB(b) of tBSo Agreement. ThiC rule provides that employees who absent themselves from work for five days vithovt having notified the compdny shall be considered as htving resiqred from the service. Sn keeping with what it had believed at the tiare to be the Claimant's failure to be in con gliance with th-x notirication provisions o= such rule, the Carrier tarminatad the Claimant from service on November s, 1987. Tharaaftsr, apoly protest of such action, the Carrier rescinded such termination, and restored the Claimant to service effective October 11, l9®d. Lvidentiary documentation had meantime showed that rha Claimant was certified by his personal physician as able to resume ragul:tr work affective December 29, 1967. The dispute here at issue tt.us concerns what compensation the Claimant is entitled to for tt.e period December 29, 1967 to October 11, 1986.

The C6rrier sayix that cotr.pansation for time lost should be based on what It ter:ps, the ClaimantIc "absantaeisn rate of fifty

m~nation from service, less any outside conpaneation earned by

the Claimant during the period in question.

The organization maintains that the Claimant should be made whole for ail tins lonE. It sd;yx there is no agreement, precedent, or

any other sugpoxt to justify mitigating the claim !or time lost.

In the opinion of the Board, even though the Carrier admittedly

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vieletse the ab we referenced rule, we believe that the claim !or compensation should be limited to the net wage loss Sustained by the Claimant. Re do not believe that the Claimant should ha entitled to a windfall-bavauae of the wrongful actions of the Carrier.

These i® no quastion that if one was to limit consideration to that period of tuna immediately prior to the Claimant being terminated tram service on November 6, 1997 that it avoid be bald that ha had, as asserted by the carrier, "amassed an absenteeism rata of approximately Sot." He had bean off duty aaaount an al-

1487, and than an injury to his anxla on or about October =6, 1987, and, ac indicated above, ha wee not thereafter csrtifidd by iris own personal physician as being able to resume regular work until December 9, 1987, or wall beyond the November 6, 1967 date he was wrong2ai:.y terminated Cron service. The Claimant had also been withhold from service account imposition at a d0-day disciplinary suspwiaion daring the month of August 1987 in waiver at e, hearing into rhnrqas of axoamaiva absenteeism. Therefore, it is apparent tha~. it one vas to take into consideration only that perio3 a! tima immediately prior to the claimant's ssrninstion from service on November 6, 1P87 that he, as the Carrier Would offer, had been away from work for a rather significant savant et time.

However. when one reviews the Cleimant'a peat work record to the limited extent as submitted by the Carrier with its submission, ox, spepitiaaliyr back to January l9®7, It is evident that the Gia$t he$ a veriedsls year attendance record. For exempla, he was abxsat shout 35t or the tiafa from Sanuary L, 1947 to August 1, 1987, or the data of imposition of the above mentioned 3o-day disciplinary penalty. Further, the record shows a z®i rata of

absenteeism dur;lng the first six months o! 198, with but two or theta days of sbsanqss in cams aoontha. Accordingly, we believe that the ca_·.rier is obliged to take a more protracted look at the Claimant's past work revved to determine a rats of absenteeism,

In this latter .cegard the Hoard ir'o! the opinion that it would be inapprapriata to Loluds as a part o! the Claimant's record

that period of aims during which the Claimant was absent account those alleged injuries which had essentially lad to the dispute hers at issue. we also believe consideration o! the past record should exclude the 30-day period of ties that the Claimant vas withheld trots anrviea in the administration of discipline as wail as the period of rises directly related to that charge of record which had led to the assessment at such diaaiplint. No say the latter because it would sash to the Hoard that the claimant had been penalised for arch days of absence by a subsequent leas of pay during his ':O-day suspension from service.

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