SPECIAL BOARD OF ADJUSTMENT NO. 1048
AWARD N0.163
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claire on behalf of J. P. Fultz for pay for reinstatement to service after his dismissal
following a formal investigation on February 28, 2007, concerning his failure to protect
his job assignment and his excessive absenteeism.
(Carrier File MW-WEELr07-02)
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 under Public Law 89-456 and has jurisdiction of the parties and subject matter,
AWARD
After thoroughly reviewing and considering the record and the parties' presentations, the Board finds that
the claim should be disposed of as follows:
The record reflects that Claimant was scheduled to return to work from a disciplinary suspension. With
his supervisor's concurrence, he received two weeks vacation, making his scheduled return date January
17, 2007. Claimant did not report for service and did not contact his supervisor or other proper authority
to request further time off. On February 6, 2007, Carrier notified Claimant to report for an investigation.
On February 12, 2007, Claimant contacted his supervisor and advised that he was under a doctor's care
and unable to work. He submitted a doctor's note the following day which indicated that Claimant was
under care and not released to return to work until March 3, 2007.
There is no question that Claimant absented himself without authority. Regardless of whether Claimant
was physically disabled from working, Claimant was required to notify supervision and obtain authority
for his absences. He failed to do so and may not have come forward at all had Carrier not noticed him
for an investigation. Carrier clearly proved the charges by substantial evidence.
A 1qV
ed IG3
However, considering all of the surrounding circumstances, we find that the penalty of dismissal was
excessive. Claimant shall be reinstated to service with seniority unimpaired but without compensation
for time out of service. Claimant's reinstatement is conditioned on his passing a physical exam and such
other requirements that Carrier may reasonably impose.
M. H. Malin
L
Chairman and Neutral Member
tholomay D. L. Kerby
Orga ' a ion Member Carrier Member
Issued at Chicago, Illinois on January 28, 2008