Opinion
Civ. A. No. 2076.
January 2, 1958.
Calvin W. Wesch, of Roberson Wesch, Kermit, Tex., for plaintiff.
Josh H. Groce, of Eskridge, Groce Hebdon, San Antonio, Tex., for defendant.
This court having heretofore entered its order staying the above case in order to give the National Railroad Adjustment Board the first opportunity to pass upon the construction of the Railway Labor contracts and the Railway rules, customs and usages involved in this suit (see Cook v. Thompson, 150 F. Supp. 650); and the defendant now having made known to the court that said Adjustment Board has made and entered its final award in the following terms:
"National Railroad Adjustment Board "First Division
"Award 17 970 "Docket 33774
"Parties | San Antonio, Uvalde and Gulf Railroad Company to Dispute | J.W. Cook
"Statement of Claim: "Request that the First Division, National Railroad Adjustment Board sustain action of the Carrier in dismissing J.W. Cook from Carrier's service January 26, 1953 for failure to protect his assignment as engineer-fireman on the San Antonio, Uvalde Gulf Railroad since August 15, 1952."
"Findings: The First division of the National Railroad Adjustment Board, upon the whole record and all the evidence, finds that the parties herein are carrier and employe within the meaning of the Railway Labor Act, as amended [ 45 U.S.C.A. § 151 et seq.], and that this Division has jurisdiction.
"Hearing was held.
"The dispute comes to this Division by petition of the carrier and involves the question of its action in discharging an employe in engine service for his failure to comply with rules of the collectively-bargained schedule agreement and the carrier's operating rules.
"The employe's last service was performed at Corpus Christi, Texas, on August 15, 1952, as locomotive engineer, from which time he was voluntarily absent and inaccessible without leave. The record discloses that nothing was heard from him for approximately three months when a letter dated November 12, 1952 was received by the carrier's Superintendent containing a request for a leave of absence both retrospectively to the date of his having left his job and continuing until January 1, 1953. The letter stated he had removed his wife to another climatic region of Texas for reasons of her health. The request for leave to be absent, made at a time when his period of absence was already of some three months' duration, was not granted.
"There is no evidentiary showing in this record of sickness either of the employe or of his wife, nor is there any suggestion of suddenness in the health condition that is mentioned.
"The carrier refers to Article 29 governing the subject of leaves of absence, and to its Operating Rule No. 504 requiring employes to register address changes and give notice of where they can be found. The record establishes that schedule agreement provisions and carrier's operating rules, all of which are in conformity with customs and usages in the railroad industry relating to the whereabouts, accessibility, residence, and authorized absence of rail carrier employes, were not complied with.
"The position of the carrier and its action taken in these circumstances will, therefore, be sustained.
"Award: Carrier's action in dismissing J.W. Cook is sustained.
"National Railroad Adjustment Board By Order of First Division
"Attest: /s/ J.M. Macleod Executive Secretary "Dated at Chicago, Illinois. This 17th Day of January 1957."
And it appearing to the court that under Title 45, Section 153, first (m), it is provided that "the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award", the court is of the opinion that this cause should be dismissed, since the award of the Adjustment Board is final, there having been no money award.
It is, therefore, Ordered, Adjudged and Decreed that this cause be, and the same hereby is, in all things Dismissed with prejudice.