Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36413
Docket No. CL-37021
03-3-01-3-649
The Third Division consisted
of
the regular members and in addition Referee
Rodney E. Dennis when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMIZENT OF CLAIM:
"Claim
of
the System Committee
of
the Organization (GL-12780) that:
1. Carrier violated Rules 10, 24, and other related rules
of
the Agreement
between Amtrak and TCU when, by letter dated January 19, 1998 it
terminated the employment
of
Claimant Charles Schembri.
2. Carrier will now be required to reinstate Claimant for all pay service
with all seniority rights intact.
3. Carrier shall now be required to compensate Claimant for all pay lost
due to Carrier's violation
of
the Agreement.
4. Carrier further violated Rule 25(a) of the agreement when it failed to
properly respond to the claim and give a reason for disallowance of the
claim as required by the Rule. As a result of this violation Carrier
shall now be required to pay the claim as presented as mandated by
the Rule."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, f,nds 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
d
one 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.
Claimant Charles Schembri was hired as an unassigned Clerk on Amtrak in
Sacramento, California, on June 18, 1996. On November 9, 1996, the Claimant went on a
Medical Leave of Absence. By January 19, 1998, he had not returned to service for the
Form 1
Page 2
Award No. 36413
Docket No. CL-37021
03-3-01-3-649
Carrier. On that date, the Carrier sent him the following Certified Letter, Return Receipt
Requested:
"CERTIFIED MAIL 2242 331 548
Return Receipt Requested
January 19, 1998
Charles M. Schembri
748 Aries Lane
Foster City, CA 94404
Dear Mr. Schembri:
SSN 553-66-5243
In accordance with your current T.C.U. governing agreement, specifically
Rule 10 which reads in part: `The seniority of any employee whose seniority
under this agreement is established after April 15, 1986 and who is both
unassigned and performs no compensated service for 365 consecutive days
will be terminated if such employee has less than three (3) years seniority.'
Inasmuch as you have not performed any compensated service since
November 8, 1996, your employment with the National Railroad Passenger
Corporation is terminated effective immediately. Please return any company
property
you
may have in your possession.
Very truly yours,
R. L. Jones
Service Manager
cc: J. W. Deely
L. J. Commer
R. P. Cota, TCU 2506 Chairman
Personnel
File"
On April 23, 1998, Mike Davis, Vice General Chairman filed the instant claim with
R L. Jones, Amtrak Service Manager, in Sacramento, California. It contended that the
Claimant was improperly terminated and cited a number of arguments on his behalf. The
Carrier did not respond to the claim. On July 21,1998, Vice General Chairman Davis sent
the following letter to the Amtrak Division Manager, Labor Relations:
Form 1
Page 3
Award No. 36413
Docket No. CL-37021
03-3-01-3-649
"July 21, 1998
Mr. Thomas W. Fleming
Division Manager, Labor Relations
Nai ional Railroad Passenger Corp.
80U North Alameda Street
Loa Angeles, California 90012
File 0393-VW8-028
Schembri, Charles
SSN 553-66-5243
Deter Mr. Fleming:
This is in reference to the above numbered claim filed by the undersigned on
Api^il 23, 1998. A copy
of
said claim is enclosed for your ready reference.
As
of
this date the organization has received no reply to this claim, and
accordingly it is now payable per Rule 25
of
the current Agreement. Please
arranged for Claimant Schembri to return to service and be compensated for
all time lost.
Sincerely,
Mike Davis, Vice General Chairman
cc: P. Davis
L. Jones
Claimant
File"
The claim was reviewed in conference on November 17, 1999. The Carrier
responded to the Organization's claim in a detailed letter dated November 23, 1999. The
claim, however, was progressed by the Organization to the Board for final resolution.
The Board reviewed the record in detail and has concluded as follows:
1. The Carrier was correct in concluding that the leave
of
absence granted the
Claimant did not qualify as an assigned period under Rule 10
of
the
Agreement.
2. The Claimant did not perform any compensated service after November 8,
1996. The January 19, 1998, letter terminating the Claimant's employment
under Rule 10 was more than 365 consecutive days after the Claimant last
performed service for Amtrak.
3. Rule 10, Section (F) is a self-executing Rule. It reads as follows:
Form 1 Award No. 36413
Page 4 Docket No. CL-37021
03-3-01-3-649
"The seniority
of
any employee whose seniority under this
agreement is established after April 15, 1986 and who is both
unassigned and performs no compensated service for 365
consecutive days will be terminated
if
such employee has less
than three (3) years seniority."
The conditions
of
the Claimant's employment relationship with Amtrak fits
perfectly with all
of
the terms specified in Rule 10.F.
4. The fact that Amtrak did not timely respond to the initial claim filed on April
23, 1998 is not dispositive
of
this claim as the Organization contends. The
original claim was filed 94 days after the January 19,1998 letter terminating
the Claimant was sent. This makes the initial claim untimely by over 30 days.
5. The Organization's argument that even though the Local Chairman was
copied on the April 19, 1998 letter, it has no record of him receiving it. The
Organization contends that it was not aware of the Claimant being
terminated until just prior to April 23,1998. The Board is not persuaded by
this argument or that the Local Chairman did not receive the January 19,
1998 termination letter.
6. While it would have been better for the Carrier to have responded to the
Organization's April 23, 1998 claim, the fact that it did not does not give an
untimely fded claim validity.
7. Finally, the Board has concluded that the alleged procedural errors by both
parties do not change the fact that the Carrier did not violate the Agreement;
thus the case is denied.
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 17th day of March 2003.