Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32571
Docket No. MW-33672
98-3-97-3-141
The Third Division consisted of the regular members and in addition Referee
Edward L. Suntrup when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Trackman J. G. Galan for his alleged
insubordination when he did not report for a physical examination
on April 10, 1995 was without just and sufficient cause and based on
an unproven charge (System File MW-4239-D).
(2) As a consequence of the aforesaid violation, Trackman J. G. Galan
shall now be reinstated with seniority and all other benefits 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 employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act. as
approved June 21, 193.1.
This Division of the .Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Form I .ward No. 32571
Page 2 Docket \'o. MW-33672
98-3-97-3-1-11
The Claimant. J. G. Galan. sustained an occupational injury on October 31, 1994
and was off duty thereafter. The Claimant was compensated by the Carrier under its
Temporary Wage Continuation Program while off duty due to the injury. This
compensation was paid from October 31, 1994 through March 14, 1995. On April 4,
1995 the Claimant's Orthopedic Physician and Surgeon, Alberto E. Rodriquez MD.
informed the Carrier that the Claimant could return to light duty on Februarv 20, 1995
and to full duty on March 6, 1995.
In accordance with Carrier policy the Claimant was scheduled for a follow-up
medical evaluation at the Ingalls Health System in Calumet. Illinois. The Claimant was
notified by letter dated April 4, 1995 to appear for this evaluation. The letter was sent
to the Claimant's address on file.
The Claimant did
^-t
-spear for the medical evaluation as directed.
Subsequently he was sent ::
T
Investigation under date of April 12, 1995. He was
charged with insubordination for failure to follow directions found in the April 4, 1995
letter which had been sent to him. After postponements the Investigation was held on
November 27, 1995. Thereafter, on December 13, 1995 the Claimant was advised that
he had been found guilty as charged and he was discharged from service.
This discipline was appealed by the Organization under Section 3 of the Railway
Labor Act and the operant Agreement and the claim was conferenced on property. In
~ iew of the Claimant's long tenure with the railroad. with no prior discipline. the
Carrier offered to return the Claimant to service on leniency basis ". . . with time held
out of service to apply as a suspension . . . ."
Thereafter, however. the Claimant signed a General Release waiving all ". . .
claims. demands and actions . . . ." which had been initiated against the Carrier.
including the instant claim before this Board. The Claimant signed this release in return
for a sum of money not specified herein by this Board.
After reviewing the full record on this claim the Board concludes that the claim
has no viability in view of the March 21. 1997 Settlement Agreement signed by the
Claimant.
Form l .ward No. 32571
Page 3 Docket :No. MW-33672
98-3-97-3-141
This Board has ruled on numerous occasions that a claim is moot in the face of
such a waiver. See Third Division ,awards 20832. 26470, 26694 and 29408. .also First
Division Award 24045 and Second Division Award 13034.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois. this 29th day of April 1998.