SPECIAL BOARD OF ADJUSTMENT NO. 1049
AWARD N0.135
Parties to Dispute:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK SOUTHERN RAILWAY COMPANY
Statement of Claim:
Claim on behalf of E. E. Smith for reinstatement to service with seniority, vacation and
all other rights unimpaired and pay for time lost as a result of his dismissal from service
following a formal investigation held on July 24, 2002, in connection with his failure to
follow written instructions to supply updated medical records/reports and current status
of his medical condition to the Company medical director.
(File MW-CN-O1-18-BB-494)
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.
This award is based on the facts and circumstances of this particular case and shall not serve as a
precedent in any other case.
AWARD
After thoroughly reviewing and considering the transcript and the parties' presentations, the Board finds
that the claim should be disposed of as follows:
The record reflects that Claimant last worked on March 8, 2000, after which he marked off sick. On
October 3, 2001, the Supervisor Administrative Services wrote Claimant advising him to contact the
nearest Track Supervisor's office to arrange for a return-to-work physical or to supply a statement from
his physician stating why he could not return to service. On October 31, 2001, the Division Engineer
wrote Claimant that Claimant had not arranged for a return-to-work physical and that no medical records
had been received. The Division Engineer instructed Claimant to provide updated medical
reports/records concerning his medical status within ten days of receipt of the letter and warned Claimant
that failure to comply with the instructions could subject him to disciplinary action. The letter was
received at Claimant's residence on November 3, 2001. Claimant did not respond.
Claimant was noticed for investigation for January 7, 2002. Following two postponements, the
investigation convened on March 7, 2002. Claimant did not appear. The investigation was recessed and
several additional postponements were granted. The investigation reconvened on July 24, 2002 and
Claimant again did not appear. A recess was taken to allow Claimant's representatives to attempt to
contact him. They were unsuccessful and the investigation proceeded in absentia.
58A 1049
A u.3d 136
It is clear that Carrier proved the charge by substantial evidence. Under all of the circumstances
presented, we cannot say that the penalty of dismissal was arbitrary, capricious or excessive. The claim
is denied.
M. H. Malin
Chairman and Neutral Member
D. . rtholomay D. L. Kerby
Organi ion Member Carrier Member
Issued at Chicago, Illinois on December 29, 2003