Form 1
TI L ADJUSTMENT
BOARD
T I
war . 76
Docket No,. MW-37351
- -- -376
The Thir Division consisted of the regular members
and
in addition Referee
Elliott . Goldstein wen awar was rendered.
(Brotherhood oaintennce of Way E loyes
~,RTIES T DIP
(BNSF Railway Company (former Burlington
( Northern' Railroad nay)
STATEMENT F CLAIM:
"Claim the to Committee f the Brotherhood t
(1) The Carrier violated the Agreement en it removed . .
A.raujo fro the seniority roster and closed out his record as
May 1 1997 (System File - 7- 030-1 7- -21 ).
(2). s a consequence the violation referre to in art (1), . .
J. rjhall now `. . . have is seniori restore e i
for all lost s incurred."'
I
The Tit Division f the Adjustment nt Board, upon the whole record and all the
evidence, 1n s that:
The carrier r carriers n the employee r employees involve in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act"
as rove June 21,1934.
This Division of the Adjustment Board has jurisdiction 'over the dispute
involved herein.
Parties to i dispute ere iv a once f ithereon.
For 1
Page 2
Award o.760
t . - 7
0 - -0- -
The lint established seniority s a Sectionman oy , 197 and
subsequently as promoted
and
established seniori as Track Foreman
an
,.Assistant Track Foreman on ay 15,1991. The Claimant additionally established
seniori as Group 3 acme Operator o July 1 ,1992.
n Aril 16, 19 7, pursuant to Rule of the Agreement, the Claimant
was
sent recall letter, via certified ail, return receipt requested, instructin hi t
.report to the position of Relief Trac Inspector t Denver, Coloro. The
Claimant's ifs, a
Araujo,
si nefor the certified letter n April 1 ,1, the
record so s. The parties do not disagree that, according to Rule , the Claimant
ha
ten
calendar days
fro the date of his
receipt the
certified letter tert for
the assignment. a relevant portion of Rule is set forth, s fills:
" RETENTION,
EMPLOYES
SENIORITY
I
can a ploys laid off by reason f force reductio desires t
retain his seniori rights, he must within ten (10) calendar days of
ate so affected file is name n address in ruin n the for
ell
III
lie for t at roe . . . . When new positions of ore t
'thirty (30) calendar days' duration are established, r e
vacancies ore than thirty (30) calendar s' duration occur,
e loges who have complied it this rule ill bcalled c to
service in the order f their seniority. Failure
to
file his name and
address r failure to return to se ice within ten (10) calendar days,
unless prevented y sickness, or unless satisfactron is given
fir
dot
dingy so, will result in loss
fall
seniority ribhts~
= e
NOTE: 1. E loges cane ask to se ice in accordance i
provisions of le must report at starting time of shift
to which calleithin ten (10) calendar days."
The Carrier's decision terminate the Claimant's seniority y reason f is
failure to report for a Relief Track Inspector position iin t ten-day period
s ciabove s lamely ass n the statement provided y ad aster . .
hymens ', quoted i its entirety, s l
For 1 r o. 760
Page 3 Docket No. MW-37351
_3__
d
76
"Topic; Claim of . J. Araujo 0 76,25,97
After I recalled . Araujo the rst communication I received from
him as a voice mail message after his ten days were p requestin
four weeks vacation. He did not mention any medical role at
that time. When I talked to the call desk, they told a that
Araujo had given several different excuses s to why he would not
report for work. I then called r. rujo and informed i that
his request for vacation was denied n he was expected to be t
work. t that time for the first time informed
ma
that he as
having problems with depression.
Because . ujo i f make an honest attempt to contact
and
ex plane (sic) to a his circumstances calle the bid desk an
informed the that r. Araujo had iletotect his assignment.
Sincerely,
Gene M. Shymanski
aaster Denver Co."
In is June 16, 1 7 claim, suitte on a Claimant's behalf t the
Manager Maintenance Support, the General Chairman requested reinstatement the Claimant's seniority and payment for all lost a es n benefits. According t
the Organization, the Claimant contacted the oa aster to inform him "that he
did not feel uaifie to handle this assignment." The Organization averre that the
Claimant needed the vacation time in order to schedule appointment with is
personal physician "to evaluate is medical reasons for not filling the assignment."
The Organization maintains tat a a,1 7 letter fro . L. Thompson,
, to oa aster Shy an', corroborate the Claimant's assertion tat e
coul not perfor the duties associate with t Relief Trac Inspector position to
hich he s recalled, and tat pursuant t e " e ical exception" provision
within Rule , , the Claimant s unle to cover t assignment "f satisfacto
reason illness." Indeed, t Organization points ut, accordi tat letter,
For war .760
Page. 4' Docket No. MW-37351
0 _3®0 -3_376
the Claimant had been recently diagnosed s itic an was "controllin his
diabetes with much difficulty."
dditionally' the Organization states that, according to r. To son, when
examined the Claimant on ay 2,19 7, the Claimant s upset and depressed
rrdin being required to work as Track Inspector r Foreman. The
Organization furthermore points to that portion of r. Thompson's letter, which
states.*
".
. . e said that a had id for these jobs previously, but because f
the responsibilities of te he no lner wishes to te this
responsibility n wen takes the responsibili it creates are t
deal f anxie an depression an makes it ore dicult for i t
control his diabetes. . Araujo feels that the job of track inspector
an foreman are too stressful for
him
and I agree. I respectively
request that e e Allowed to step don an rain as a trac
laborer."
The Manager intenncuport denied the claim y letter ate July 7,
1 7. The reasons for the claim denial essentially ere raw fro aster
y ins i's statement, quote above. The Manager's response (1)
after havin been recalled to t position of Relief Track Inspector, the Claimant
contacted oa aster after, his ten days had passed; (2) the Claimant's request
as for four weeks f vacation with netion of a medic probls; (3) the
Call Desk ha informed oaster Shy anski that the Claimant
"shad
given the
Call Desk various excuses by a would not report the . . . position," n(4) the
Claimant did not mention having pr oblems With depression until after Shvans .
had told i his vacation request was enie n e as "expected trrt."
(Emphasis added)
The Organization emphasized in its August 1, 17 letter oeal that,
fro its revie of . Thompson's letter, the Claimant's s medical condition was such
tat a "soul a put into position it the responsibilities such s Track
Inspector s that a would a better able to cope it is medical condition." n its
subsequent appeal, the Organization further stresse tat r. T son's
rim
diagnosis substantiated e Claimant's
inability
t perform e duties f Relief
Form I Award No. 37602
a Docket . - 7 1
- -02- - 7
Track Inspector "for reason of sickness." It essentially thus
argued
that, given the
appropriate documentation of the Claimant's sickness, his ensuin loss of seniori
s not justifled by the terms of ule .
Unable to reach mutual resolution f this clai durin th on-property
handling of this matter, the dispute was listed for hearing before the Board. e
carefully reviewed the entire record before s, as ell s the precedent submitted y the parties in support of their respective positions. a old for the
foregoing reasons that the claim must t be denied.
The Board initially notes that there is nothing in the recor whic esties
that the Claimant s recalled in error the position f Relief Track Inspector. We
observe that the documentary evince confirmed that the April 1 , 1 recall
letter as sent to the Claimant's correct address of record and, 'on April ,1 97,
was accepted by his wife, as evidenced by her signature n the certified ail receipt.
Thus, we find that, pursuant to Rule , the Claimant's recall as proper, and head
dutY to respond to the recall within ten calendar days of his receipt ohe recall
notice.
T June 5, 1997 statement from osier Shymanski is probative
evidence the Claimant's failure report for the assignment within n days, r
alternatively, contact hi t discuss his suppose " eical reason" for not
reporting, again, prior to the expiration of the ten-day period. As the Carrier
pointe out, Rule 9 is a "self-executing" Rule which, as the oar held i on
roper Third Division ward 2 516, ". . . triggers the forfeiture f seniori rights
as a result of an employee's failure to act t within the requisite time period." See also
Case 25 of
Public
Paw Board o. 43..1; involving these parties, in is the rd
l
"ten-day provision f Rule is self-actuating. This o fin s
n mitigating circumstance which should serve to stay the self
executing language . The Organization as t
convincingly that the Carrier as been inconsistent i
the application of the time limit requirements of Rule 9, or that the
`clan ' f tat rule has ediminished y the Caier' past
s."
f
r 1 r . 760
Page 6 Docket No. MW-37351
0- -0 -3-376
eturning to
te
content of Road master's Shymanski's statement, , we find no
reason toubt its veraci especially given the lack of any specific rebuttal fro
the Claimant. Contrary to the Organization's contention, we find no evidence that
hyans ''s statement was motivated b"self interest," or tat yanski had n
"axe to grind" against this secic Claimant. This case stems fro the Claimant's
failure to comply with
the clear
requirements of f Rule
91.
As the Board held in Case
, supra, given the Claimant's length of servicin the Maintenance of Way craft,
the Claimant "knew or should have known of the Rule procedure, including the
lime restrictions."
iegar t whether mitigating circumstances existed
that
somehow
revente the Claimant fro arranging a doctor's appointment i a timely e,
oar finds that h recr ievoid of ny evidence showing that, for reasons
beyond the Claimant's control, hs unable to sec re an appointment until fte
the ten-day deadline. Moreover, without unertkin any findings s to whether
the Claimant would haveen entitled to medical leave f absence if e h
requested one prior tor durin the recall period, there simply is no evidence that
the Claimant ever made any such leave-o-absence request, s the Carrier pointed
out. a further flnd no probative evidence ten-day period as too littl
time for the Claimant o have baron appointment with his physician.
Again, there is evidence that the Claimant tried to scheule a timely
appointment, b coul not o s, for reas beyon his control. Moreover, there is
no evidence that the Claimant even sought permission t exten the reporting
deadline in order ttain the necessary documentation so as to substantiate his
clai of " edicl unfitness" for duty. s previously noted, the record makes lain
that
(1) the Claimant .. as not seen by Dr. Thompson until ay 2,1997,
and
(2) t
Claimant i not raise any medical issue e with the Roadmaster until after
Shymanski a informed hi that is vacation request t was being denied.
e agree, therefore, tat given the line of precedent cite y the Carrier,
n the clear language f Rule , it was not obligated accept t Claimant's "after
t fact statement" in the form f . Thompson's letter "'disqualifying" the
'Claimant. oar is cnvinctt, even if a ere to concede tat t
Claimant l t have erfor t duties for medical reasons, tmanner i
Form 1 Award No. 37602
t . -
_- -
is t i st obtain ist consistent it t
uirt t l
is considered t Organization's contention t' y i t t
"Claimant s v t
,"
aster, essentially "was illi t
waive the ten-day deadline." We find from the record that such argument does not
see t v advanced the parties' - ehandling f itt .
.Thus, at this juncture, the Board has no authority to address what now appears to
,be a speculative, new argument raised after the Organization's filing
of
its Notice of
t Ole a
Submission et.
thus conclude t t Claimant's failure it -
ispecified i 1 is i t . There i insufficient
vi v t, t i f the recall, he was "prevented by sickness"
reporting, e stress. . Moreover, as noted above, the Claimant's failure to
timely isatisfactory rs r t ti v. e
Carrier's decision to proceed with the administrative termination of the Claimant's
seniority s stifle
r
these facts, we rule. There simply is no
I
evidence that
the Carrier's application of Rule 9
as
regards this particular Claimant was
arbitrary, capricious r i, .
AWARD
Claim i
ORDER
This Board, after consideration of the dispute identified above, hereby orders
r favorable l ts.
NATIONAL RAILROAD ADJUSTMIENT BOARD.
By Order of Third Division
t , ,.