Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28415
THIRD DIVISION Docket No. CL-28375
90-3-88-3-158
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10255) that:
1. Carrier's action in the termination of Ms. P. A. Jeuk, Extra
Clerk, Bensenville, IL, effective March 8, 1984, was excessive, discriminatory, arbitrary and capric
2. Ms. P. A. Jeuk shall have her record cleared of all charges which
may have been placed against her as a result of this case.
3. Ms. P. A. Jeuk shall be reinstated to the service of the Carrier
with seniority and all other rights unimpaired.
4. Ms. P. A. Jeuk shall be compensated for all wages and other
losses sustained account her termination."
FINDINGS:
The Second 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.
In the facts and circumstances of the instant case, Claimant had
advised the Management-Placement Services of her furloughed status by letter
dated February 22, 1984. By letter dated the next day, said Manager informed
Claimant that she was recalled to service in accordance with Rule 12(d). That
letter also clearly advised Claimant of the conditions set forth in Rule 12(d)
with respect to termination of seniority.
Form 1
Page 2
Award No. 28415
Docket No. CL-28375
90-3-88-3-158
The record indicates that Claimant did not respond to the recall
letter from the Manager-Placement Services. By letter of March 8, 1984,
Claimant was informed that her seniority was terminated.
It is the position of the Organization that Claimant complied with
Rule 12(d) and that the Carrier violated said Rule when it terminated Claimant's seniority "after sh
service
...."
The record confirms that Claimant provided a reason for her
failure to return in a letter dated March 11, 1984.
It is the position of the Carrier that the Rule clearly requires the
Claimant to return to service within seven days. This the Claimant failed to
do. Claimant's failure to return to service was a self-executing act which
terminated Claimant's seniority.
Considering this case on merits we find that Rule 12 (d) is explicit
in the responsibility of Claimant to return to service within seven (7) days
after written notification. There is no denial in the record that Claimant
received proper notification and failed to respond. The crux of this case has
to do with the specific language thereafter wherein Rule 12(d) further states:
"furloughed employes failing to return to service ...within seven (7) days after being notified
reason for not doing so, otherwise they will
terminate their seniority."
The Board finds no time limit in this Rule and Claimant responded in
a reasonable number of days. The Rule does not require Claimant to give the
satisfactory reason within the seven days. While there is much in the record
on what Claimant did or didn't say about the Chauffeur's position, her reason
for failure to return to service was submitted immediately after her notification that seniority was
This Board finds much speculation, argumentation and historical documentation in this record. It
seven days. It also finds that Claimant did comply with the language of the
Rule which requires the submission of a satisfactory reason for failing to
return to service. If Carrier wished to deny the reason, or maintain it was
unsatisfactory, their burden was not met in this record. They did not refute
the medical condition, nor that it would have prohibited Claimant from satisfying the responsibiliti
We find that Claimant did comply with the Agreement Rule as written.
Claimant gave a satisfactory reason for her failure to return to service as a
Chauffeur. However, the record submitted indicates that Claimant acted in an
unreasonable and inappropriate manner throughout this instant case. The
record stands unrefuted that Claimant avoided contact with Carrier officials,
Form 1 Award No. 28415
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90-3-88-3-158
did not discuss the recall when requested, and was opposed to the position due
to the scheduled hours. There is no denial that Claimant had been requested
to wait for a discussion with the Manager-Placement Service and had left without complying with the
request an unjust hearing), avoidance and failure to answer the recall letter
were inexcusable. Nevertheless, we are constrained by the Rule and the unrefuted physician's letter
position) to find the Carrier's termination of seniority in these instant
circumstances to be excessive action to Claimant's failure to respond. We
will sustain Parts 1, 2 and 3 of the Claim. We will deny Part 4 for the
reasons given herein.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.