NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-27002
(Brotherhood of Railroad Signalmen
PARTIES OF DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM:
"a. Carrier violated the parties' Scheduled Agreement, as amended,
particularly Rules 90, 49 and 81, when, on or about April 26, 1985, Mr. Roy A.
Sneffner, Manager Signals Communications and Electrical Facilities, denied
Claimant's request for a leave of absence to continue working as a signalman
for the Chicago Union Station when there were qualified furloughed employees
available to Carrier.
b. As a consequence of such action, Carrier be required to reinstate
Claimant I. Panepinto, Jr., with seniority and all other rights unimpaired and
make him whole for all wage loss suffered, if any. Carrier File: 144-113.
General Chairman File: 85-24-EJE."
OPINION OF BOARD On December 21, 1984, Carrier abolished several positions,
including that of Claimant who then took the required steps
to retain his seniority rights.
On April 12, 1985, Carrier advertised the position of Leading Signalman at Joliet, Illinois. By
Joliet position noting he considered receipt of the bulletin as notice of
reasonably continuous employment under the Agreement. By bulletin of April
23, 1985, the position was awarded to another.
By letter of April 24, 1985, Claimant requested a 90 day of leave of
absence stating:
"I am currently employed as a signalman with
Chicago Union Station. And, would like to continue
in this position temporarily, I want to continue my
permanent employment with (the carrier)."
By bulletin of April 24, 1985, the Carrier advertised a Leading
Signalman position at Gary, Indiana. The wording was substantially similar to
that of the earlier bulletin.
On April 26, 1985, the Manager Signals Communications wrote Claimant
advising:
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Docket Number SG-27002
. . . you do not need a leave of absence to work
elsewhere because you have been in a furloughed
status . . . and your seniority is presently being
accumulated . . . . "
On April 30, 1985, Claimant wrote the Carrier that if the April 24,
1985, bulletin was notice of reasonably continuous employment:
"Then I would have to return on this position or
forfeit my seniority . . . I am therefore asking
for this leave of absence . . . so that I may
continue working at Chicago Union Station without forfeiting my Leading Signalman's seniority."
On May 3, 1985, the Organization wrote the Carrier quoting Third
Division Award 23124 which, it felt, required Carrier to grant Claimant's
requested leave.
By
bulletin of May 10, 1985, the Gary position was assigned to
Claimant.
By
letter of May 13, 1985, the Carrier so notified Claimant. The
letter advised:
"If you fail to report for duty within ten (10)
calendar days after the date notified you will
forfeit all seniority rights as provided in Rule 46
(b) and Rule 49 . . . .
By
letter of May 15, 1985, the Carrier notified the Organization:
. . . I could not recommend waiving Rule 92 to
grant a leave of absence . . . under the present
facts and circumstances."
On May 16, 1985, Claimant again wrote the Carrier. He referred to
his two previous letters as well as the Organization's May 3, 1985, letter to
the Carrier. The Claimant stated:
"I am still waiting your decision on this request
and would appreciate your response to this request
as soon as possible."
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Docket Number SG-27002
On May 29, 1985, the Organization wrote the Carrier contending that
although Claimant's request was for a Leave of Absence to work elsewhere Rule
90 applies and since there were several other qualified employees available
refusal to grant the leave would violate the Agreement. It further contended
Rule 46(b) did not apply. The Organization stated that a Claim would be filed
if Claimant's name was removed from the seniority roster or if leave was not
granted. The Organization took the position removal of Claimant's name while
a grievance was pending would violate Rule 81.
On May 29, 1985, the Carrier notified Claimant that as he had not
reported:
"Per Rule 46(b) and Rule 49 . . . you have
forfeited all seniority . . . .
Various Rules which may be applicable state in pertinent part:
"Rule 48
(e) Reasonably continuous employment as used in
this agreement shall be understood to mean that
full time employment is available, as afforded the
regular assigned forces, for a period of not less
than three (3) months.
Rule 49
. . . Failure . . . to return to the service within
ten (10) calendar days after being notified by the
management of reasonably continuous employment
being available will cause forfeiture of all
seniority rights unless a leave of absence has been
obtained under the provisions of Rule 90 . . . .
Rule 81
Prior to the assertion of grievances as herein
provided and while questions of grievances are
pending, there will neither be a shut down by the
employer nor a suspension of work by the employees.
Rule 90(a)
Employees who have been in the service one (1) year
or more will upon request be granted a leave of
absence not to exceed ninety (90) days when the
requirements of the service permit . . . .
Rule 92
An employe who lays off to engage in gainful
employment elsewhere, without written permission
from the Carrier, whether on leave of absence or
not, will lose his seniority."
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Docket Number SG-27002
The Organization contends Carrier's refusal to grant Claimant a leave
of absence, without stating reasons why it could not, violated Rule 90. It
further argues Carrier's letter of May 13, 1985, did not constitute a guarantee of "reasonable conti
Organization also views Rule 81 as requiring that any action should have been
postponed pending appeal of the dispute regarding the leave of absence. The
Organization also notes Claimant was never directly notified by Carrier that
his request was denied.
This Board has carefully considered the positions advanced by the
Organization. Whether or not Rule 90(a) requires Carrier to establish "the
requirement of the service" do not permit granting a leave of absence in any
specific case we note Claimant's request stated the purpose was to work other
employment. Pursuant to Rule 92, working elsewhere requires written permission of the Carrier. This,
Claimant's April 30, 1985, letter clearly indicates he understood the
Gary position bulletin to be "written notice of reasonably continuous employment" as he had previous
record does not disclose Claimant was ever directly notified his request was
denied the Organization was notified and Claimant's May 16, 1985, letter,
which refers to the organization's letter assures us he wag aware there was
controversy over the request. He acted at his peril when he failed to report
to Gary. The principle, often stated, is "comply and grieve." This Board has
been directed to no case in which an exception to this principle has been
found to exist based upon the effect compliance would have upon third party
relationships. We believe there is none. If Claimant had reported to the
Gary position it is almost certain he would have had to relinquish the Chicago
Union Station position. This is unfortunate from one point of view but Claimant, who receives the be
Self help can only result in industrial chaos. Thus, whatever the merits of
the question regarding a leave of absence, Claimant was not free to fail to
report to Gary if he wished to retain his seniority.
Nor can we agree that Rule 81 is applicable. It was Claimant who did
not report. As was stated in Third Division Award 12993:
"An employee removing himself from a Carrier's
service by his own voluntary act cannot be held to
have been discharged from such service by Carrier
as a disciplinary act."
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;
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Docket Number SG-27002
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:
Nancy J. Dever - Executive Secretary
Dated at Chicago, Illinois, this 27th day of October 1987.