NATIONAL RAILROAD ALI7USTMENT BOARD
THIRD DIVISION Locket Number MW-24985
Tedford E. Schoonover, Referee
(Brotherhood of Maintenance of Way &mployes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation (former
( Penn Central Transportation Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly dismissed
Trackman J. E. Dent for alleged "failure to comply with Rule 3-D-1 of the
Agreement" (System Locket 542).
(2) The claimant shall be returned to service with seniority and all
other rights unimpaired and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: On a date prior to October 4, 1979, claimant was informed by
the carrier that his position as trackman was to be abolished
effective October 5, 1979. At the same time he was advised that he had 10 days
to exercise his seniority and place himself in another position. The Agreement
Rules referred to in this situation are Rules 3-D-1(b) and 3-D-1 (d) as follows:
"(b) An employe laid off as the result of reduction of force,
desiring to retain his seniority, must within ten days from the date
laid off, file his name and address, in writing, with the Supervisor
of Structures, Supervisor of Track, or other corresponding officer,
under whom last employed. The employe will prepare three copies of
such notice, retaining one copy and filing two copies with the
officer referred to. One copy of such notice will be forewarded by
the Management to the District Chairman.
(d) An employe who fails to comply with the provisions of paragraphs
(b) and (c) of this rule will forfeit his seniority and his name will
be removed from the seniority roster."
When claimant failed to comply with the requirements set forth in the
above rules carrier concluded he had forfeited his seniority. Thus, the following
letter was addressed to claimant on October 16, 1979, by R. P. Miller, Supervisor
of Track.
"On October 1, 1979 or earlier, you were informed that your position
as Trackman had been abolished and that you had 10 days in order to
exercise your seniority and place yourself in another position. The
abolishment became effective with the close of the tour of duty on
the 5th of October. On October 4th you were involved in an incident
with a fellow employe on company property, resulting in what you
allege to be an injury to yourself. You were given medical attention
following this incident and the Physician at the Emergency Room could
find nothing wrong with you that would keep you from returning to
work immediately. You went home that day and have not returned to
work since.
I
Award Number 24744 Page 2
Locket Number MW-24985
"On the 9th of Xtober you were examined by Dr. Vincent D. Cuddy, the
Physician of your own choice, and from our discussions with his
office, he feels also that there is no reason why you cannot return
to work. You have also informed this office that you have gone to
see a third Physician on or before October 12th, but as of the date
of this letter, we have seen no medical evidence for your absence.
Since you have failed to show cause as to why you are absent, and
since you have failed to exercise your seniority in the proper amount
of time, we are concluding that you have exhausted your seniority
rights on the M of W roster. ***"
Claimant challenges applicability of the rules quoted above because
of particular circumstances in his case. Thus, on October 4, the last day
claimant worked, he scuffled with another employee and sustained an injury
which required medical attention. He was examined by the company doctor at the
Rochester Medical Center, given aspirin and told he could return to work
immediately. The doctor's report showed claimant suffered a mild contusion on
the left side of his neck. Instead, of returning to work, claimant took the
rest of the day off and did not return to lark thereafter. Additionally, claimant
took no action to advise carrier of his condition or why he failed to exercise
his seniority following abolishment of his job.
Carrier checked with Dr. Cuddy, claimant's own physician who reported
as follows:
"On the 9th of October you were examined by Dr. Vincent D. Cuddy, the
physician of your choice, and from our discussion with his office, he
feels that there is no reason why you cannot return to work."
Claimant consulted with still a third physician, a Doctor Domazo, who
issued a statement dated October 29, 1979, that claimant could return to work.
Claimant reported for duty on October 29, for the first time since October 4,
and presented the statement from Dr. Lbmazo. He was refused by R. P. Miller,
Track Supervisor. Claimant then got his Organization representative Hildebrand,
and together they reported to Division Engineer Steinbacher. He also refused
and sustained the position stated by Mr. Miller in his letter of October 16,
quoted above. With respect to Dr. Dbmazo's statement it should be noted it
does not indicate he treated claimant; it states only that claimant was able to
return to work as of October 29. It gives no indication whatever as to whether
he might hate been able to return to work prior to that date. Lacking information
as to whether Dr. Dbmazo had treated claimant during the period in question
renders the statement of little value in resolving the controversy.
Award Number 24744 Page 3
Docket Number MW-24985
In challenging the carrier's determination, the Organization cites
another part of Rule 3-D which applies to employees returning to work following
sickness or disability ie., Rule 3-D-5 as follows:
"3-D-5. Returning to duty after leave of absence, sickness, etc.-Exercise of seniority.
If during the time an employe is off duty account leave of absence,
vacation, sickness, disability or suspension, his former position is
abolished or filled by a senior employe in the exercise of seniority,
he may exercise seniority as outlined in Rule 3-D-1.
Employes displaced from their regular positions by the return of an
employe from leave of absence, vacation, sickness, disability or
suspensiori, shall exercise seniority as outlined in Rule 3-D-1."
Thus, the dispute resolves itself into a question of whether claimant
was obligated to exercise his seniority within 10 days because his job was
abolished or whether his claimed disability entitled him to wait until his
return from such disability before being required to exercise his seniority.
His injury of October 4, was mild by the company doctor's diagnosis
and he was cleared to return to work immediately. On the basis of such a
finding it cannot be determined that claimant was disabled, insofar as the
rules are concerned. His decision to take the rest of the day off and his
failure to contact any authoritative carrier representative as to his job
status until October 29 cannot be accepted as valid reasons to set aside the
rules cited by carrier in concluding he had forfeited his seniority. Not only
did the company doctor clear claimant for returning to work on October 4, but
Dr. Cuddy, who examined claimant on October 9 also indicated there was no reason
he could not return to work. In view of these findings, one by the company
doctor and the other by claimant's own physician, it is difficult to accept as
valid claimant's
contention of
being disabled. Also noted is Mr. Miller's
letter of October 16, to claimant wherein it was stated:
'You have also informed this office that you have gone to see a third
Physician on or before October 12th, but as of the date of this
letter, we have seen no medical evidence for your absence."
Awaz3 Number 24744 Page 4
Docket Number MW-24985
The record confines that claimant ignored requirements of the Parties'
Agreement in taking action to protect his seniority rights as required by Rules
3-D-1 (b) and (d). Moreover, company doctor's clearance for his immediate
return to work on October 4 obligated him to either return or at least contact
proper company officials with an explanation. He simply took off and presented
no medical statement at all or any other explanation until October 29. He
continued to ignore the seniority rules and now seeks applicability of Rule 3D-5. The record does no
of Rules 3-D (b) and (d) are self executing, the carrier was obligated to proceed
in recognizing claimant had forfeited his seniority.
Why claimant was indifferently silent during the period October 4 to
29 is not explained. In the circumstances it can only be determined that he
was neglectful in taking action to protect his seniority standing and carrier
took the required course of action in determining he had forfeited his seniority.
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 respecti-
?1
Carrier and &nployes 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:,-:~____
Nancy J.
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-Executive Secretary
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Dated at Chicago, Illinois this 30th day of March, 1984
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