Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28406
THIRD DIVISION Docket No. MW-28667
90-3-89-3-18
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly terminated
B&B Carpenter T. Moreno's seniority without benefit of an investigation
(System File 1525/871047).
(2) The Claimant shall be reinstated with seniority, benefits 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.
As of September 14, 1987, the Claimant was advised that he could not
be released to take a vacation for the period from September 20 to October
10, 1987. The record is unclear whether this vacation period was requested by
the Claimant as of September 14 or had actually been previously scheduled for
the stated period.
In any event, the Claimant did not report for work Monday, September
21 and thereafter. On September 28, 1987, the Carrier sent the following
letter to the Claimant:
Form 1 Award No. 28406
Page 2 Docket No. MW-28667
90-3-89-3-18
"This is to advise that the Company's records
indicate you have been absent from service since
September 21, 1987, when you took vacation without proper authority.
Rule 48(k) of the agreement between the
Brotherhood of Maintenance of Way employees and
the Union Pacific Railroad Company reads as
follows: 'Employees absenting themselves from
their assignments for five (S) consecutive
working days without proper authority shall be
considered as voluntarily forfeiting their
seniority rights and employment relationship,
unless justifiable reason is shown as to why
proper authority was not obtained.'
You are, therefore, considered as having
voluntarily forfeited your seniority rights and
employment relationship."
Although Rule 48(k) is considered by the Carrier to be self-effectuating, provision is made in R
if he believes he has been "unjustly treated." Such conference was sought and
held. As a result, the Carrier wrote to the Claimant on November 17, 1987, in
part as follows:
"You are hereby returned to service on a
leniency basis with all seniority and vacation
rights unimpaired. There will be no claim for
time lost."
The Claimant returned to service on November 24, 1987. However,
the Organization maintained its right to pursue a Claim for time lost up to
November 24, 1987.
Despite the controversy over the scheduling of vacation time, the
record shows that the Claimant was seriously ill commencing September 19 and
that notification of such illness was made to Carrier supervisors. This was
conceded by the Carrier in its report of the November 4 conference, in which
the Carrier representative stated that the Claimant "has proven . . . that he
was sick and should have been off through 9/26/87."
Further, the Claimant contends that a Foreman, when informed of the
Claimant's illness, arranged to place the Claimant on vacation (as previously
requested) to avoid loss of pay for the Claimant. The Carrier argues that the
Foreman did not have the authority to do so.
In any event, there was no legitimate basis for the Carrier's utilization of Rule 48(k), given t
Claimant's illness. As a result, the Claim must be sustained for the period
from termination of employment until restored to duty.
Form 1
Page 3
A W A R D
Claim sustained in accordance with
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.
Award No. 28406
Docket No. MW-28667
90-3-89-3-18
the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division