Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28481
THIRD DIVISION Docket No. MW-28791
90-3-89-3-189
The Third Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.

(Brotherhood of Maintenance of Way Employes

PARTIES TO DISPUTE:

(Terminal Railroad Association of St. Louis

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it terminated the seniority of Track Laborer S. M. S '... failure to return to the Carrier's service within seven (7) calendar days after being so notified on August 13, 1988 ....' (System File 1988-4 T.R.R.A./013-293-15).

(2) The Claimant shall be reinstated with seniority, benefits and all other rights unimpaired and he shall be reimbursed for all wage lose suffered as a result of his
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.

The Claimant entered Carrier's service on June 21, 1977, as a track laborer. At the time this dispute arose, Claimant was on furlough. By letter dated August 12, 1988, Claimant was notified to report for work in accordance with the provisions of Rule 16 of the Agreement which reads as follows:
Form 1 Award No. 28481
Page 2 Docket No. MW-28791
90-3-89-3-189

"RULE 16 - RETAINING SENIORITY

When an employee laid off in force reduction desires to

retain his seniority rights, unless displacing a junior

employee, he must notify supervisor in charge, with copy

to general chairman, of his current address. If recall

ed to service and subsequently furloughed the employee

shall be responsible for notifying the supervisor of any

change in address. When forces are increased, the

employee will be notified at last address of record and

will return to service within seven (7) days thereafter.

Failure to return within seven (7) days, unless

prevented by sickness or other unavoidable reason, will

result in loss of all seniority rights. The seniority

of employes resuming service in accordance with the

foregoing will be cumulative during the period of

absence."

Claimant received his recall to service notice on August 13, 1988.

By subsequent letter dated August 22, 1988, Claimant was notified that his
seniority had been terminated " -- account of your failure to return to the
Carrier's service within seven (7) calendar days after being so notified on
August 13, 1988, This dispute has been handled in the usual manner on
the property, and, failing to reach a satisfactory resolution thereon, has
come to this Board for final adjudication.

The Organization advances several arguments in support of their contentions. They argue that Claiman the Carrier to advise them of his inability to return to work before the expiration of seven (7) day excused from performing any work until August 23, 1988, and that documentary evidence to this effect has been presented to the Carrier. They further argue that their request for a hearing under the provisions of Paragraph (g) of Rule 24-DISCIPLINE AND GRIEVANCES was improperly denied.

The Carrier, on the other hand, contends that there is no record or recollection by anyone in Carrier's employ relative to Claimant's alleged attempt to contact the Carrier on August 19, 1988. Carrier further argues that Rule 16 is clear and self-executing; therefore, no hearing was required or justified under the terms and conditions of Discipline Rule 24. Carrier also questions the timeliness and credibility of the Organization's presentation of a physician's re service until August 23, 1988.

We have reviewed all of the material which has been presented and have considered all of the respective arguments which have been advanced by the parties. It is our conclusion that the Carrier's position is more persuasive and must prevail. Rule 16 is a self-executing rule which requires only the action of proper notification to the employee to return to service. Once that notification is properly given a Form 1 Award No. 28481
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the employee to either return to work within the prescribed time limit or to show by conclusive evidence that he is ".. prevented by sickness or other unavoidable reason,..." fr
In this case, there is no conclusive evidence to support the Organization's contentions relative 19. As for the physician's statement - which is dated September 22, 1988 - and which was presented to the Carrier for the first time at a conference on February 3, 1989, it is, to say the least, unusual evidence which, if correct, would have served a much more effective argument if presented at the time of Claimant's termination or at least during the early on-property handling of the grievance. While the Board may properly accept any evidence which is part of the on-property handling of a claim or grievance, the timeliness of this particular piece of evidence is suspect and, in the Board's opinion, not persuasive.

As for the necessity or propriety of conducting a Rule 24 hearing, this Board is in agreement with the position expressed in Award 65 of P.L.B. 1760. Termination under Rule 16 is not discipline. It is rather the application of a clear, self-exe No further action is required to apply its self-executing provisions.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest: ~_ Py~s,~

any J. er - Executive Secretary

Dated at Chicago, Illinois, this 7th day of August 1990.