service on January 8, 1986, while imprisoned. About one month later, by letter of February 10, 1986, claimant advised Carrier that the charges against him stemmed from his defense against a robbery attempt and that he was under the impression that he had been granted, in response to his telephone call to his supervisor on December 9, 1985, a 30-day leave of absence.
Carrier has remained firm in its refusal to reinstate claimant despite dismissal of all charges against claimant. Its position is that claimant clearly violated Rule 27(b) since he was absent for a period of 20 days without receiving permission from his supervisor.
In Carrier's view, Rule 27(b) is self-executing and requires Carrier to terminate the seniority of any employee who has violated Rule 27(b) unless absence is due to "sickness or disability, or under circumstances beyond his control."
Contrary to Carrier's position, this Board is satisfied that claimant's absences were due to circumstances beyond his control. His incarceration, the only reason realistically before us for his
absence, was a circumstance beyond his control since the charges for which he was imprisoned were all dismissed, and there is no showing in this record that he was guilty of any crime for which he should have been imprisoned. Carrier should reasonably have been aware that it was taking a chance in dismissing claimant for absences caused by imprisonment when he had not as yet ever been convicted of any crime and, in any event, :could have well established rights of appeal from any conviction that ::,fight eventually follow.
Claimant is clearly entitled to reinstatement with seniority rights unimpaired. The only question that remains is as to remedy concerns back pay.
It would be improper, in our judgment, to require Carrier to compensate Claimant for wage loss suffered prior to January 30, 1987, when all evidence of the court decision was presented. It would likewise be remiss if we did not question the Claimant's reasoning for not immediately presenting the court's decision of September 10, 1986, as the Carrier forcibly argued in this case.
Although the Carrier erred in its decision on January 30, 1987, in not returning the Claimant to work, no evidence was presented explaining why the Claimant waited from September 10, 1986 until January 30, 1987, to return to work. Therefore, in review of the entire record and without prejudice to future cases similar in nature, this claimant, having not been dealt with in bad faith, is not entitled to receive back pay.
s