Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26931
THIRD DIVISION Docket No. MW-26495
88-3-85-3-368
The Third Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation - (Amtrak)
Northeast Corridor
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 Mr. D. Carter (System File NEC-BMWE-SD-904).
(2) Mr. D. Carter shall be returned to service with seniority and
all other rights unimpaired and he shall be compensated for all wage loss
suffered."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was employed as a trackman. By letter dated November 17,
1983, Claimant was notified that because he had been absent from duty since
August 25, 1983, Carrier considered him as having resigned from service under
Rule 21(a) of the controlling Agreement. Rule 21(a) provides:
"(a) Employees who absent themselves from
work for fourteen (14) consecutive days without
notifying their supervisor shall be considered
as having resigned from the service and will be
removed from the seniority roster unless they
furnish the Carrier documented evidence of
either physical incapacity or that circumstances
beyond their control prevented such notification. In the absence of the supervisor, the
employee shall notify the office of the Division Engineer on the division on which last
assigned."
Form l Award No. 26931
Page 2 Docket No. MW-26495
88-3-85-3-368
Claimant thereafter requested an appeal hearing; the hearing was held as
scheduled on March 16, 1984, without Claimant's attendance. On March 30,
1984, Carrier notified Claimant that his appeal had been denied. The Organization subsequently appea
This Board has reviewed the evidence in this case, and we find that
the claim must be denied.
First of all, this Board does not have jurisdiction over this dispute
because it has not been handled as required by the Railway Labor Act and the
controlling Agreement. Under Rule 74(a), the Claimant had fifteen days from
the date that the Carrier denied his initial appeal within which to further
appeal the Carrier's handling of this matter. Rule 74(a) provides:
"An employee who considers that an injustice has
been done him in discipline matters and who has
appealed his case in writing to the appropriate
Assistant Chief Engineer (Track, CSS/ET, Structures) within fifteen (15) days, shall be given
a hearing."
The Carrier notified the Claimant of its denial by letter dated March
30, 1984, which the Claimant received on April 2, 1984. The Organization did
not notify the Carrier of its intent to appeal this denial until June 1, 1984;
and, therefore, the Organization did not comply with the fifteen-day limit of
Rule 74(a). This Board consistently has held that failure to comply with such
time limits will bar a case from further consideration.
Moreover, the claim is without merit. Under the self-invoking provision of Rule 21(a), the Carri
resigned from service when he absented himself from work for fourteen consecutive days without notif
that he was prevented from giving such notice by circumstances beyond his
control. The Claimant could have presented such evidence at the March 1984,
meeting, but failed to attend. There was nothing in the medical statements
submitted later, on appeal, that show that the Claimant was unable to notify
his supervisor of his absence; these statements indicate only that the Claimant was unable to perfor
physically unable to work, he still was responsible for notifying his supervisor of his absence.
The record establishes that the Claimant failed to notify his supervisor of his absence from ser
the record. The Claimant failed to submit any evidence that mitigates his
failure to provide such notice, nor did he provide the proof required by Rule
21(a) that he was prevented from providing such notice. This Board has held
that medical statements showing that an employee is unable to work do not
excuse the employee from the obligation of notifying the Carrier of his or her
absence. Rule 21(a)'s penalty is self-invoking. Therefore, the claim is
denied.
Form 1 Award No. 26931
Page 3 Docket No. MW-26495
88-3-85-3-368
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J./~ - Executive Secretary
Dated at Chicago, Illinois, this 30th day of March 1988.