Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35724
Docket No. MW-34795
01-3-98-3-503
The Third Division consisted of the regular members and in addition Referee
Robert L. Douglas 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 Agreement was violated when the Carrier improperly
terminated the seniority of Mr. D. A. Dubach by letter, dated
August 30; 1996 for alleged absence in excess of fourteen (14)
consecutive days without permission (System Docket MW-4641).
(2) As a consequence of the violation referred to in Part (1) above, the
August 30,1996 letter shall be removed from Mr. Dubach's record,
he shall be reinstated to service and compensated for all lost wages
sufered."
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, 1934.
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 1 Award No. 35724
Page 2 Docket No. MW-34795
01-3-98-3-503
The record reflects that the Claimant had been furloughed and, after
approximately ten months, he bid on an Assistant Foreman position on August 1, 1996
in a different seniority district. The Carrier awarded the Claimant the position effective
August 7; 1996. The Claimant failed to report for the Assistant Foreman position. In
a letter dated August 30, 1996, the Carrier informed the Claimant that:
"Since August 07, 1996, you have been absent without permission from
your position as Assistant Foreman . . . headquartered at Dewitt, New
York.
Our records indicate that you have been absent in excess
of
fourteen (14)
days.
Therefore pursuant to Rule 28
of
the BMWE Agreement, your seniority
is hereby forfeited in its entirety."
Rule 28 (Absent Without Permission) provides that:
"(a) An employee unable to report for work for any reason must notify his
supervisor as soon as possible.
(b) Except for sickness or disability, or under circumstances beyond his
control, an employee who is absent in excess
of
fourteen (14) consecutive
days without receiving permission from his supervisor will forfeit all
seniority under this Agreement. The Employee and the General Chairman
will be furnished with a letter notifying them
of
such forfeiture
of
seniority.
The employee or his representative may appeal from such action under
Rule 27, Section 3."
A review
of
the record indicates that the Carrier did not violate the Agreement.
In particular, the Claimant failed to take the necessary steps to determine whether the
Carrier had awarded the Claimant the position
of
Assistant Foreman for which the
Claimant had submitted a bid. The Claimant had an affirmative obligation to make
suitable and effective arrangements to monitor the awarding
of
the Assistant Foreman
position. The Claimant failed to do so. The record does not contain any extraordinary,
remarkable, or unusual circumstances that eliminated, excused, or relieved the Claimant
of
the responsibility to be available to accept the successful bid or, at minimum, to notify
Form 1 Award No. 35724
Page 3 Docket No. MW-34795
01-3-98-3-503
the Carrier of any intervening difficulty that may have precluded the Claimant from
reporting to work in a timely manner. By failing to do so, the Claimant assumed the risk
that the Carrier would apply Rule 28. This case does not involve a traditional return
to work from furlough situation and therefore the notification requirement set forth in
Rule 4, Section 3 lacks relevance. Under these circumstances, no basis exists to disturb,
overturn, or reverse the actions of the Carrier in applying the provisions of Rule 28. See
Third Division Awards 25648 and 31788.
AWARD
Claim denied.
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 24th day
of
October, 2001.