C:\MYDOCU~1\SCHEDU~2\3-21042.htm

NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 21042

THIRD DIVISION Docket Number CL-21036

Joseph A. Sickles, Referee

(Brotherhood of Railway, Airline and Steamship Clerks,

( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE:

(Pacific Fruit Express Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-

7812) that:

(a) The Pacific Fruit Express Company violated the Clerks' Agreement when it removed Mr. L. F. Nunez
(b) The Pacific Fruit Express Company shall now be required to reinstate Mr. L. F. Nunez to service with seniority and all other rights unimpaired.

OPINION OF BOARD: Claimant was a furloughed protected employe at Yuma,
Arizona. On June 12, 1972, he was notified to report for duty as an Iceman at Tucson, Arizona; which notice also cited the pertinent portion of Rule 13 w bulletined position within fifteen (15) days (or give satisfactory reason for not doing so) will be considered out of service.

Claimant declined to report, as follows:

"I am sorry I can't go to Tucson, Ariz. do to the fact that I am buying a house and what I earn goes to paying of the house. I can't afford to pay room and board and pay for the house too. And to top it all my sister has a broken ankel and my brother in law just got out of the hospital and they stay at home with me.

I am working right now and I make a call now and then for P.F.E. when I have the time. And I haven't that much of a guranteed from P.F.E. and if I have to go to Tucson for a month or a month and half when I get back I'll be out of a job so I'll be unemployed."

Carrier refused to accept Claimant's reasons.

On the property, Claimant defended his refusal to report because he was not notified in a manner prescribed by the October 15, 1969 Memorandum Agreement, which state considered as "recalls" under Rule 13.

Award Number 21042 Page 2

Docket Number CL-21036

Carrier denied that the October 15,1969 Memorandum Agreement was applicable to this dispute, but rather, restated its contention that Rule 13 required it to issue the recall notice and that Claimant failed to comply with that rule. In its Submission to this Board, Claimant urges that his reason for not reporting to the Iceman position at Tucson was satisfactory and that Carrier's interpretation was unconscionable and arrogant, and repeated the assertion that the 1969 Memorandum controlled. We do not find that Claimant raised the "sufficiency of reason" assertion on the property, and thus, he is precluded from doing so at this level. In any event, Award 20678 is pertinent to the type of reason asserted by Claimant for his failure to report. As we view this dispute, the Claimant's rights and corresponding obligations were dictated by Rule 13 of the Agreement, and that rule does not permit exceptions based upon distances involved. Claimant had the requisite seniority and qualif to do so. Whatever the applicability of the 1969 Memorandum of Agreement, it would not appear to be controlling; here. We have noted, as stressed by Carrier, that the 1969 Memor Awards 20678 and 20863. While that factor is not necessarily controlling, it is certainly persuasive.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934; That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement was not violated.

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division ATTEST: A,644Z Executive Secretary Dated at Chicago, Illinois, this 15th day of April 1976.