f- THIRD DIVISION Locket Number MW-24192


                    (Brotherhood of Maintenance of Way Employes

      PARTIES TO DISPUTE:

                    (Burlington Northern Railroad Company


      STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:


      1. The Agreement was violated when the Carrier improperly terminated its employment by Mr. Bradley X. Forbord on January 18, 1980. (System File T-M-297C)


      2. The Claimant shall be reinstated with seniority, vacation and all other rights unimpaired and he shall be compensated for all wage loss suffered, including overtime and holiday pay beginning March 10, 1980.


      OPINION OF BOARD: On May 6, 1980, the Organization filed this claim alleging

      that employes with less seniority than Claimant were being

      recalled to service ahead of Claimant. The Carrier had recalled Claimant from

      furloughed status on December 31, 1979. When Claimant failed to respond to

      the recall within ten days, the Carrier terminated his employment on January

      18, 1980. The Organization submits that Claimant was temporarily disabled on

      December 31, 1979, and thus, was excused from reporting back to service.


      Claimant was injured in an automobile accident on September 8, 1979, while he was on furloughed status. In late October, 1979, Claimant informed the Carrier that he was injured and would be unable to work until January, 1980. Believing that Claimant was requesting a medical leave of absence, the Carrier, by letter dated November 19, 1980 notified Claimant that a signed physician's statement (describing the nature of Claimant's physical disability) was necessary to obtain sick leave. Receiving no response, the Carrier reiterated its need for a doctor's statement in a December 1979 letter to Claimant. In addition, the Assistant Roadway Supervisor's clerk orally contacted Claimant dur.-2g this period. Claimant still did not respond. Four days after Claimant's termination, the Carrier received a copy of a medical chart pertaining to Claimant's condition. The chart, which was dated December 10, 1979, related that Claimant's injuries stemming for the automobile mishap would prevent him from working until at least March 1, 1980. When Claimant sought to return to work in early March, 1980, the Carrier denied Claimant's request and argued that he had forfeited his seniority pursuant to Rule 9 of the applicable Agreement.


      The pertinent portion of Rule 9 provides that when an employe is called back to service, his "...failure to return to service within ten calendar days, unless prevented by sickness, or unless satisfactory reason is given for not doing so, will result in loss of all seniority rights.° There is no doubt that Claimant ignored the December 31, 1979 recall notice. Though he was disabled at the time of the recall, Claimant failed to confirm ^_s injury by forwarding a signed physician's statement and procurring a sick leave of absence. The Carrier's letters in November and December, 1979, expressly warned Claimant that he could be obligated to report to duty when called unless he had obtained a medical leave. Finally, the December 31, 1979 recall notice emphatically informed Claimant that he had to report within ten days or lose his seniority. Since Claimant did not furnish the required documentation, the Carrier did not

Award Number 24769
 Docket Number MW-24192
Page 2
know if his injury prevented him from reporting to work. Claimant did not take any affianative steps to provide the Carrier with the appropriate medical documents until after the Carrier had terminated him. The seniority forfeiture terms of Rule 9 are self-executing. Third Division Awards No. 20863 (Lieberman); No. 21539 (Sickles) and No. 21875 (Zumas). Even though Claimant substantiated his disability after January 18, 1980, his failure to procure a medical leave (despite repeated communications from the Carrier) resulted in the automatic loss of his seniority in accord with Rule 9.
To the extent that this claim is based on recalling workers with less seniority ahead of Claimant, the issue is moot. Claimant was recalled, in seniority order, on December 31, 1979. Inasmuch as we have denied this claim on its merits, we need not address the Carrier's contention that the initial claim was filed beyond the sixty day limitation period set forth in Rule 42.
        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 respectivele Carrier and ETnployes 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.
Attest<Z
 Nancy e. DfGer - Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 13th day of April, 1984