Brotherhood of Maintenance of Way Employer

(Consolidated and Pennsylvania Federations)

and

Norfolk Southern Railway Company

Statement o f'Claim:

Claim an behalf of L. D. Root for reinstatement with seniority and all other riches unimpaired arid pay far all time lost as a result of his dismissal from service following a formal investigation an tVFarch 2&, 20D3, in connection with his failure to follow instructions to appear for a physical examination on February 27, 203.

(Carrier Filu:1vIy3r-DEAR-03-OS-Lief -O5d)

Upon the whole record and all the evidence. after hearing, the Board finds that the parties herein are carrier and employee. within the meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreement and has jurisdiction of the parties and subject matter.

This award is ltaaed on the facts and circumstances of this particular case and shall not serve as a precedent in any other case.

Claim disposed of as follows:

The record 3 ef leets that Claimant had been off duly for medical reasons since March 200-2. In February 2(303, Claimant advised Carrier that he was able to return to work. On February 26, 2003, the Track Stipcrvisor instructed Claimant to report far a return-to- work physical exam on February 27 at I (1:00 u.m. Claimant did not report as instructed. Claimant called the Track Supervisor the following day and requested that the exam be rescheduled. The exam was trot rescheduled and Claimant was notified to report for art investigation. Following the investigation, Claimant was dismissed from service. Carrier reinstated Claimant six months later.

Carrier clearly proved the charge of failing to follow instructions by substantial evidence. Claimant did trot repast for the physical as instructed. However-, we note that Claimant was not charged with and was not found guilty of insubordination, a much mono serious offense. Considering all of the circumstances, we. find that the. Penalty of dismissal and the penalty to which the clistnissal was ultimately converted, a six month suspension, were excessive. Indeed,
9 y
Aced

we carrot sere any justification for- a penalty more severe than a suspension equal to the aniouut of tithe Claimant was out of service between the notice of investigation and the determination that he was guilty of the charge. However, it, appears from the record in base No. 23, which we have considered simultaneously with the instant claim, that beginning in March 2003, Claimant was medically unable to perform his duties. Accordingly, although the penalty must be reduced, Claimant is rat entitled to any monetary award.

M. H. Malin Chairman and Neutral Member .-,

/ f

1; ~

f'. K.` Geiler> Sr, D. I,. Kerby
Organization Member Carrier Member

Issued at Chicano, Illinois, October 19, 2004.