NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-25335
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly closed the
service record of Trackman H. J. Martinez (System File D-2-82/MW-7-82).
(2) Trackman H. J. Martinez 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: The record shows that Claimant- was previously employed as
a laborer in Carrier's Mechanical Department at Grand Junction,
Colorado. On June 14, 1981, he resigned his position as a laborer in the Mechanical
Department as follows:
"Please accept this as my resignation as laborer,
Mechanical Dept., Grand Junction, Colo., in order to
transfer to the section at Austin, Colo, effective 730am
June 14, 1981."
The Organization contends that on August 9, 1981, Claimant suffered an
off-duty injury to his shoulder and, on January 25, 1982, contended that subsequent
to his injury, Claimant made Carrier aware of his situation and "has since been on
sick leave". The Organization went on to contend:
"While on sick leave, on or about January 6, 1982, and
while attending a doctor's appointment made with Dr.
Fisher, in Montrose, Colorado, the doctor's receptionist
told the claimant that the Hospital Association contended
his application for employment had been disapproved,
whereupon he contacted this office."
Rule 7(a) of the applicable Agreement reads in part:
"An employe who enters the service of the Company
shall be accepted or rejected within sixty (60) days
from the date he entered service. If not notified to
the contrary within such sixty (60) day period it shall
be understood that he becomes an accepted employee..."
The Organization went on -
"In reviewing our records we find that the carrier's
letter dated August 28, 1981, received in this office
September 1, 1981, claimant was 'dismissed 8-12-81
(Appl. Dis.).'
Award Number 25265 Page 2
Locket Number MW-25335
"The first hint that claimant had that his application
had been disapproved was when the doctor's receptionist
had mentioned this to the claimant. To date the carrier
has not notified the claimant that he has been dismissed."
Under Rule 7(a) the Carrier had sixty days from June 15, 1981, to notify
Claimant of the rejection of his application. Claimant's prior service in the
Mechanical Department gave him no rights under the Agreement covering Maintenance
of Way Employes. However, when challenged, the burden was on the Carrier to prove
that Claimant was notified within sixty days from June 15, 1981, that his application
was rejected. In the considered opinion of the Board, the Carrier has not met
that proof. In its Submission to the Board the Carrier has submitted two undated
and unnotorized statements, one from a Foreman and one from a relief. Foreman,
that
on
August 12, 1981, Claimant was told by the relief Foreman that he was
"fired". The Organization contends that the two statements were never made a
part of the handling of the dispute on the property and may not be properly presented
for the first time before the Board. We have reviewed the correspondence covering
the on-property handling of the dispute and find no reference to the statements
of the Foreman and the relief Foreman. It is so well settled as to require no
citation, that issues and defenses may not be raised for the first time before
the Board. The statements must, therefore, be disregarded.
· In the claim
on
the property the Organization requested that Claimant
be restored to his last regular position "when he receives a medical release
As there is no evidence of a medical release being preserited by the Claimant,
there is no proper basis for the claim that he be compensated for all time lost. .
The time limit argument and other contentions raised for the first time
by the Carrier in its Rebuttal Submission must be disregarded.
We will award that Claimant be restored to his former seniority as
laborer, and restored to service provided he presents proper medical release and
can pass satisfactory physical examination that may be required by the Carrier.
The claim that Claimant be compensated for all wage loss suffered is denied.
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 violated.
Award Number 25265 Page 3
Locket Number MW-25335
A W A R D
Claim sustained in accordance with Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J e r - Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1985.