Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11989
SECOND DIVISION Docket No. 11845-I
91-2-89-2-143
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Ronald W. Ellis
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company (former
( St. Louis-San Francisco Railway Company)
STATEMENT OF CLAIM:
Mr. Ellis claims eight (8) hours at straight time rate each day until
such time as he is allowed to return to his regular duties as carman at
Memphis, Tennessee.
This claim is for continuous time from August 1, 1988 until
resolution of the dispute.
Further, Claimant requests full reinstatement of his seniority rights
according to a collective bargaining agreement signed by the Burlington
Northern Railroad.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
This Board is compelled to dismiss the instant case for failure of
the Claimant to comply with the jurisdictional mandates of the Railway Labor
Act, as amended. We have found no record of a conference on the property or
the "usual handling" as required by Section 3, First (i) of the Act, supra,
and Circular No. 1 of the Board.
Even if, arguendo, we had jurisdiction, which we do not, the case at
bar would be denied. This instant case has been studied with all assertions
and allegations considered in light of substantiating evidence. The facts
indicate that the Claimant was granted a one year leave of absence from August
13, 1979, through August 12, 1980, and signed a statement that renewal was his
responsibility. The approval stated that "it is our policy to grant leaves of
absence of this type for a period of one year." His request to return dated
June 20, 1988, some eight years later, lacks Agreement support under Rule 21.
Form 1 Award No. 11989
Page 2 Docket No. 11845-I
91-2-89-2-143
All reference to other positions, seniority lists and correspondence, do not
substantiate that Claimant fulfilled his responsibilities to protect his
seniority and return from or extend his one year leave of absence. A lack of
any correspondence for seven years from the Carrier cannot be taken as
compliance with the Agreement and continuation of service. When the Claimant
failed by certified mail or other means to assure a Carrier communication
extending his leave of absence, he failed to protect his employment (Second
Division Awards 10035, 11687; Third Division Award 27894).
Although this instant case has no merit, it must be dismissed,
because it reached this Board without the required conference held on the
property.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
G,~y
ancy J. De~Executive Secretary
Dated at Chicago, Illinois, this 16th day of January 1991.