NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25622
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(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 Section Laborer T. D. Montoya (System File D-14-82/MW21-82).
(2) The Agreement was also violated when the Carrier failed to
schedule and hold an investigation which was timely and properly requested in
conformance with Appendix '0'.
(3) As a consequence of the aforesaid violations, Claimant T. D.
Montoya shall be reinstated with seniority and all other rights unimpaired and
he shall be compensated for all wage loss suffered including overtime pay."
OPINION OF BOARD: The Claimant, Mr. Thomas D. Montoya, was employed by the
Carrier as a Section Laborer at Salt Lake, Utah. The
Carrier's evidence shows that Mr. Montoya telephoned his foreman, Mr. A.
Archuleta on May 25, 1982, wherein he informed him that he had been released
by his physician to return to work, and that he would report to work on May
26, 1982. On June 9, 1982, Mr. Montoya was dropped from the Carrier's service
under Appendix "0" of the Agreement because of his failure to report for duty
for ten working days. Mr. Montoya reported for work on June 11, 1982, offering's medical release, an
longer an employee of the Carrier. By letter dated June 25, 1982, the General
Chairman was notified that Mr. Montoya was dropped on account of failure to
report to service. On July 6, 1982, the Organization requested a formal investigation under Appendix
Agreement Rule 28, Appendix "0", states in full the following:
"Rule 28 of the current Agreement states that except as provided in
Rule 7, an employe who has been in service more than sixty days will
not be disciplined or dismissed without an invesetigation.
It is understood and agreed that an investigation will not be necessary when an employe absen
permission, for ten working days or more. Such employe may be
dropped at the end of ten working days and the General Chairman will
be notified of such action and the reason therefore.
In cases where an employe has been unable to notify his supervisor
that he would be unable to report for work because of personal
illness or other justifiable cause, such employe may within thirty
calendar days from the first day of his unauthorized absence make
written request to the proper Carrier officer for a formal investigation.
Award Number 25889 Page 2
Docket Number MW-25622
Signed at Denver, Colorado, the 12th day of April, 1972." (Emphasis
added.)
Under Appendix "0" Mr. Montoya had a right to make a written request to the
proper Carrier officer for a formal investigation within thirty calendar days
from the first day of his unauthorized absence. Mr. Montoya was well aware of
the Carrier's position that he had been absent from his assignment, without
permission, for the ten working days following his May 25, 1982, phone
conversation with Foreman Archuleta. Yet he did not timely request such an
investigation.
We have considered the Organization's contention that Rule 25(d) was
controlling. However, after May 25, 1982, when Mr. Montoya notified the
Carrier that his doctor had released him to return to work on May 26, 1982,
Rule 25(d) was no longer controlling. We have considered all evidence of
record properly before this Board, and we do not find any violation of the
Agreement by the Carrier.
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.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 30th day of January 1986.