PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO )
 DISPUTE ) ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

 STATEMENT OF CLAIM:


FINDINGS:

The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.


Claimant, an employee of the Carrier since November 5, 1981, was working as a B&B Carpenter in Kansas City,' Kansas, on January 5, 1984, when he allegedly sustained an on-the-job personal injury.


According to the Carrier, when the Claimant brought this alleged injury to the attention of one of its supervisors, the Claimant did not show any visible signs of injury and, although offered, that Claimant refused medical attention and was allowed to continue working. In this same regard, the Carrier submits that the Claimant also continued to work on a daily basis through January 11, 1984, or until he claimed, on January 12, 1984, that he could not work account the alleged personal injury of January 5, 1984.


The record is not clear as to what transpired between the Claimant and the Carrier from January 12 to January 25, 1984, or the date Carrier submits it notified Claimant that an appointment had been made for him to be examined by an orthopedic specialist at 9:OO.A.M. on the following day (January 26, 1984) in regard to the alleged on-the-job injury. In this respect, the Carrier says that it was understood between its supervisor and claimant that the latter would meet with the supervisor at his office prior to 9:00 A.M., and that they would then go together to the specialist's office.


The Claimant reportedly did not appear at the supervisor's office
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or the orthopedic specialist's office at any time on January 26, 1984, and, according to the Carrier, did not initiate any contact with either office to explain why he was not keeping the stated appointment.


Thereafter, on January 27, 1984, Carrier notified Claimant that since it had determined his actions to be in violation of Rule 801 of the Rules and Regulations for the Government of Maintenance of Way. and Engineering Department Employes that he was dismissed from all service effective,that same date.


That portion of Rule 801 which Claimant was said to be in violation of, and as was quoted in the Carrier's letter of January 27, 1984, reads as follows:






Under date of February 8, 1984, the Organization's General Chairman wrote the Carrier's Regional Engineer the following letter:








The aforementioned request for a hearing was denied by the Carrier in a letter dated February 24, 1984, and whereby the carrier stated:





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 CASE NO. 288

      plined, in writing within 15 days. In view of the fact that Mr. Markham did not respond in compliance with the agreement your request for a hearing cannot be granted and is respectfully declined."


In pertinent part, Article 14, which is entitled "Discipline and Grievances", reads:

      "(a) Employees disciplined or dismissed will be advised of the cause for such action in writing within ten (10) days.


      (b) An employee disciplined or who feels unjustly treated shall, upon making a written request to the officer of the Carrier authorized to receive same, within fifteen (15) days from the date of advice, be given a fair and impartial hearing by an authorized carrier officer. The hearing will be held within fifteen (15) calendar days thereafter, unless for good cause, additional time is requested by the Carrier, the employee, or employee's representative.


      (c) At the hearing, the employee may be represented

      by duly accredited representative or representatives.

      of .the BofWE, (excluding attorneys) or any employee of

      the MofW Department of his choice. Decision will be

      rendered within fifteen (15) calendar days after com7

      pletion of the hearing."


Contrary to Carrier assertions, the Organization submits that .Section 152, General duties, First and Second, of the Railway Labor Act, as amended, as well as Article 15, Section 1(a), of the current Rules Agreement, provide that an employee's representative shall have the right to handle disputes in behalf of employees. In this same connection, the Organization submits a total of 21 separate letters and parts of three submissions to show that the Carrier has heretofore recognized the' right of a representative to request a hearing in behalf of the aggrieved employee. The Organization therefore maintains that the carrier was arbitrary and capricious in dismissing Claimant from service without benefit of a due process hearing as provided in Article 14.


In defense of its position, the Carrier states:

      "Section (b) [of Article 14] clearly reads 'an employee disciplined or who feels unjustly treated


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 CASE NO. 288
 shall, upon making a written request *** be given'
 a fair and impartial hearing' (emphasis added by
 Carrier.) The intent of the rule is obviously
 that the employee make the written request; not
 that the employee's representative make the re
 quest. If the intent was that the employee's
 representative could make the request, Article 14
 (b) would have so stated. Note that the last sen
 tence in Article 14(b) provides that additional
 time can be granted for the hearing to be held
    when requested by 'the Carrier, the employee, or ,

    employee's representative.' This further adds to

    the Carrier's position that Article 14 is speci

    fic when someone other than the employee is al

    lowed to make a request. No such provision was

    included concerning the initial request for hear

    . ing; it must be made by the employee."


In addition to the foregoing, the Carrier, in its ex parte submission to this Board makes the following unrefuted statement:


      "Without prejudice to the above position, there could not be any basis.for lost wages. beginning on January 12, 1984. Mr. Markham marked off due to alleged personal injury on January 12, 1984, and has never attempted to mark back up. Mr. Markham's personal physician provided a letter dated January 26, 1984, that Mr. Markham's physical condition was such that he would be unable to work until further notice."


while it may be that Article 14 could literally be construed as requiring any request for a hearing to be made by an employee direct to the Carrier, we believe the Organization shows significant probative support to hold that application of the rule has permitted requests be made to the Carrier by an employee's duly authorized'representative. Therefore, the Board has no alternative but to hold that Claimant was entitled to a hearing in pursuance of Article 14.


Under the conditions in this case we believe it appropriate that the penalty of dismissal be set aside. However, since the record before the Board fails to show that Claimant has meantime shown that he is physically able to return to work,' we will hold that he is not entitled to compensation for the time he has been out of service.


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 CASE NO. 288

    Accordingly, the Board will direct that the Carrier promptly notify Claimant by certified, return receipt, mail that it is the decision of this Board that he be returned to service with seniority and other benefits unimpaired, subject to successfully passing a return to duty physical examination or otherwise;demonstrating by competent medical documentation why he is not physically able to return to active duty at this particular time, and, further, that unless such action be taken by Claimant within thirty (30j calendar days of receipt.of such notification, that his claim for reinstatement to service will then be considered as having been denied by this Board.


    AWARD:


    Claim disposed of asset forth in the above Findings.


                      Robert E. Peterson, Chairman and Neutral Member


          R. O taylor M. A. Christie

        Carri Member Organization Member


    Houston, TX

    February 5, 1986


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