terminated the seniority of Mr. J. Piskura, by letter dated October

5, 1995, for alleged failure to report to a position to which he was

allegedly assigned as an automatic bidder (System Docket MW

4121).

Claimant shall be reinstated to service with seniority and all other

rights unimpaired and he shall be compensated for any wage loss

suffered."

Parties to said dispute were given due notice of hearing thereon.

At the time of this dispute, Trackman J. Piskura, Claimant, had been employed by Carrier for approximately 23 years. Mr. Piskura held a Casual Driver position through June 12, 1995 at which time Carrier abolished his position and he reverted to furlough status. On August 3, 1995, after his BMWE representative notified Carrier that Claimant was disabled, Carrier sent Mr. Piskura an MD-25 medical evaluation form to clarify his medical status. Carrier sent the evaluation form certified mail, together with instructions to complete and return it. However, after several delivery attempts on various dates to Claimant's last listed address, those certified letters remained unclaimed.

"On August 29, 1995, you were awarded a Casual Driver Position at Elizabeth, NJ as an automatic bidder.

You were notified of this award via Certified Mail Z-794-797-538. This was mailed to your last known address. However, envelope was returned undelivered and as of this writing, you have failed to report to this position or substantiate the reason for your absence.

Therefore, based on Rule 4, Section 3 of the current Agreement, you have forfeited all seniority under this Agreement."

"As was previously discussed, Mr. Piskura was not in a furlough status but was off on sickness. The Carrier was fully aware of this fact in that I had personally spoken with Mr. Klinkbeil about him being disabled sick and also in order to have received his sickness benefits from the RRB the Carrier was contacted and confirmed his eligibility due to sickness.

The denial of his return from sickness and the citing of him after he had attempted to return was improper and he should now be returned to service and make whole for all losses sustained."

"This refers to your letter dated October 25, 1995, and to our November 9, 1995 claims conference during which we discussed the claim submitted on behalf of J. Piskura (029819).

Contrary to your contention, the Carrier properly applied Rule 4, Section 3 of the BMWE Collective Bargaining Agreement when it terminated the Claimant's seniority. By a certified letter dated August 29, 1995, the Claimant was notified that, as an automatic bidder, he had been awarded a Casual Driver position at Elizabeth, NJ. That letter was sent to the Claimant's address of record, however the Claimant never picked it up. It was returned to the Carrier unclaimed and the Claimant never gave the Carrier any reason as to why he could not report for the awarded position.

Having never responded to the above letter of recall, the Claimant was sent a second certified letter dated October 5, 1995, which he received, notifying him that pursuant to Rule 4, Section 3 of the BMWE Agreement, he had forfeited all seniority under the BMWE Agreement. Subsequent to that date, via fax, the Manager-Labor Relations was sent a doctor's note bearing the name of Pavonia Medical Associates, P.A.. That note was dated September 20, 1995 and basically stated that the Claimant was limited to performing `light duty, the lifting of less than 20 Ibs.,' and was restricted from driving."

Carrier's belated motion to dismiss the claim for procedural irregularity in the initial filing is denied. Failure to raise and perfect such a procedural objection at the earliest stages of grievance handling must be deemed a waiver. See Third Division Awards 10438, 11570, 12516. However, Carrier cannot be faulted for its conscientious efforts to ascertain Claimant's medical disability status and Mr. Piskura was clearly derelict in failing to respond to the letters of inquiry and complete and file the requisite medical evaluation forms. His own lack of care and cooperation in that regard set the scene for his exposure to the drastic consequences of his subsequent failure to take delivery of the certified letter containing his recall notice and to make a timely response to that letter.

However, given that Claimant's defects in communication were apparently innocent and not willful and taking into consideration his 23 years of prior service, we conclude that this is an appropriate case for rescission of the "self-executing" termination provisions of Rule 4. In that regard, the following observations from Third Division Award 31535 is appropriate:

"We recognize that Rule [4] is self-executing. In the past, however, when faced with a claimant who had not followed through to the extent that he should have but who also had not completely abandoned his job, this Board has recognized that confusion in communications contributing to the claimant's predicament can mitigate against the harshness resulting from a literal application of self-executing rules calling for forfeiture of seniority. See, e.g., Third Division Awards 28877, and 29483. In those cases, the Board restored the claimant to service with seniority unimpaired, but without compensation for time lost We find that a similar result is appropriate in the instant case."

Carrier Members' Dissent

to Award 33153 (Docket MW-33464)

Referee Eischen)