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The Third Division consisted of the regular, members and in addition Referee
 Ellio : of stein when war rendered.

 TO DISPUTE:
STATEMENT T OF CLAIM:
(Brotherhood of Maintenance of Way Employes

 (BNSF Railway Company (former Burlington ( Northern Railroad Company)

 " li f the System Committee f t Brotherhood t:

    (1T a dismissal (seniority termination) s. . . Haney y notification dated December 0, 2000 fro Division Engineer . T. ei zi was arbitrary, capricious an in. iotiooe Agreement [System File -1- 7 ® h0- I®017 (MW) ].


    S :


s a consequence of thviltin ere t in Part (1v,
      . . Haney shall now be reinstated immediately,

that she e whole

                                      and

11lost s and benefits ease f
 the carrier's violation f t current t."'

 The Third Division f the Adjustment Board, upon the whole record n evidence, finds that:

 t

 e carrier r carriers and the employee or employees involved in this dispute are
 respectively carrier d employee the meaning f the Railway Labor Act, s
 v June 21,193 .

    'herein.-


This Division of the Adjustment t Board has jurisdiction over the dispute involved

 i said i t 'v ti
    r

    e -

                                                __-


      The Claimant established seniori as Track man on arch 27,19 . y

of background, the record shows that ooveer 12, 199 , the Carrier's ivisi
 aintenance Engineer, . T. iig, grante the Claimant medical leave of absence
 until 11:9 . . on arch 20,1999. That letter stated impertinent part:

      ". . . If, for any reason, you will a unable to report for full a of ,

      beforearch 20,1999, you are to notiy my ofce in writing prior t

      the expiration f this leave, setting forth the length of time you wire t

      have this leave of absence extended, and the reasons king such

      necessary. Requests for extensions must be made in ample time to

      permit action thereon before the expiration of this leave. If you have

      any questions or concerns, please not hesitate to cotact either

      yself r i e Forney, Case e Medical Manager at (308) 763-2589."'


According to t a record, , on March 22, 1999 at 3:30 P.M., the Claimant sent the following note to ivision Maintenance Engineer eizi :

      " r. Heii ,


      I am requesting an extetin (sic) n y maternity. leave as e

      check-up ir1st 1 .

      n you,

      IS/ y . Haney"


The record further established that y letter ate arc 2, 199 , Division
 Maintenance Engineer eidzig arove the Claimant's above request, n thereby
 extended r leave of absence through 11:59 . . n April , 199. Included that
 letter as " oraility form" which the Claimant n her physician ere require
 t cltnd submit to eidzi 's office prior to the expiration of her leave 01
 ence. T letter of arch 24 also state

      ". . . f, for y reason, you ill a unable to report for full a on/r

      efore 11:59 , Friday, April 2, 19 , you st notifyy office in

      writing prior o the expiration f this leave, settin forth f

      ti yo desire have this leave of absence extended, and the reasons

      'n c necessary."

For 1 . 7
 Page 3 Docket No. MW-37355
 0_--_

 The Claimant's work history, as shown n the Carrier's personnel record entitled "Employee Transcript," indicates that on Jne 6, 2000, the Claimant

was medically qualified for service. However, the record also reflects that, starting on August 20, 2000, the Claimant subsequently as granted series of leaves, the penultimate of which was the leave which began october 1, 2000 and was extended to November 1 , 2000. This brings s to the circumstances that gave rise t the present case before the oar.


A, letter dated November 14, 2000 from the Carrier's Medical l Officer, M.
 Jarrr; .., .P.., to Provident Life Health Insurance located in Chattanooga,
 Tennessee, reads as follows:

      ". . . Medical Claims s Dept-:


        s. Haney as released o return to r y her trin physician


      with restrictions. However, NSF cannot accommodate restrictions. These restrictions may a tempora and a can

      reevaluate s. Haney's medical status n Janua 1, 001.


        you have any questions, feel free to call Joy y M. George....


      The on-property record further confers tat a leave of absence letter ate

November 1 fro Division Maintenance Engineer ei zig grante the Claimant's
 timely for a -day leave f absence beginnin at 11:. . n November and expiring t 11:59 . . n December 1 , 2 . The over 1 letter also

 requested the Claimant's completion of a " e ical Status Form" prior the
 expiration f the leave, and stated in a
 "If, for any reason, you find it ill be necessary for you to exten this
 leave of absence, yo are to notify y office in writing setting forth the
 length otie you desire the this leave f absence extene, n the
 reasons s making such necessary. Requests must be made in ample time
 to permit thereon before the expiration f this leave. Refer t
 Agreement between F and E, Rule 15 E - Leave of Absence:
 `, n m loyee failing to. re rt for duty on or before the expiration of
 eirth of absence ill forfeit all seni rity rights,, unless - a -
      extension is obtained ...."' (Emphasis

                            added)

    r . 7

                                        Docket - 7

                                        - ---


The incident that gave rise to the instant dispute involving the Claimant's loss o
 seniority occurred on December 19, 2000, at :6 . ., when the Claimant submitted,
 via fax machine, for entitle " Nutrizeeavof Absence" to Maintenance
 Engineer eizig. The reason for the extension, to commence on December 19, 2000
 and end on January 17, 2001, according to her form, was purportedly for reason of
 "Injury n ," we note.

 y letter date December 20, 2000, Division Maintenance Engineer eidzi enied the Claimant's request for an extension of her leave on grounds that her current leave had expired at 11®59 . . n December 1 , and her faxed -request received t . . on December 19, 2000 was late. The Carrier emphasized that the Claimant's belated request was contrary to the instructions set forth in the November 1 letter to submit any etenion request rior to t eiratin of the leave. Invoking the "selfeutin " provision Rule 15., the Carrier terminated t e ClClaimant's seniority. The Carrier state

      " y office did not receive a request for an extension to your medical leave of absence prior to expiration; therefore, effective ieditel, e advised that you have forfeited all seniori rights with Burlington Northern Santa Railway."


      n January , 01, the Organization informed t e Carrier in writing its

osition tat the Carrier's denial f the Claimant's medical leave f absence request
 as improper, and its decision to terinate her seniority s not supported under the
 ides. n January , 2001, the Carrier denied te Organization's request for t
 laimant's reinstatement for the same reasons as set forth in the December 2 letter.
 However, the Carrier consented to the Organization's request to afford the Claimant
 n Unjust Treatment Hearing pursuant to Rule 62. The Unjust Treatment Hearing
 as conducte on February 13, 2001, and the transcript f the proceedings s
 included in the on-property record and was very carefully reviewed by the Board.

 t the close of the Unjust Treatment t Hearing, the Organization renewed its
 request the Claimant's reinstatement it back pay and benefits. I letters ate
 arch 12 an Aril 11, 20 1, the Carrier rejected tat request stating tat it had fon
 evidence at the Unjust Treatment Hearing that the Claimant's termination a
 tantamount o "unjust treatment in this case." Unable t reach mutual reslui
 e claim during the on-property handling of this matter, the dispute as listed o
 t Board.
    r r

    e et o. MW-37355

    0-l0®-3

    e carefullY reviewed the entire record before us, ell s the precedent

Awards submitted by the parties in support of their respective positions. a find that
 the Claimant s late in requesting her leave and thus was in violation f the provisions
 of the November 1, 2000 letter and Rule 1 .E. However, the Board lso is convinced
 that the Carrier's decision to terminate the Claimant's seniority was arira and
 excessive especially in light of the uncontroverted fact that previous late extension
 rquesty her an another employee were not previously rejected, untimely.
 Additionally,. t the time of her termination, we note, the Carrier was prepared t
 reevaluate her medical situation on Janua 19, 2001. Consequently, believe t
 the interpretation and application of Rule 1 .E as "self-executing" leavin no discretion
 to the Carrier was arbitra and the resultant penal unduly severe. Our reasons
 follow.

 First, at e outset, the oar s that, the Carrier t suggested, under the
 circumstances a note that the Claimant was not entitled investigation under
 Rule 40. Our finding is based n the earlier logic f the Board, which l in it
 Division war 37602, a similar case involvin t Carrier's application f elf
 executin Rule , 'Retention Seniori by Laid .-.-, ff Empbyes, that n employee's
 seniority rights y a properly terminated a result of an employee's failur t act
 within the requisite time period." See on-proper Third Division Award 29 1 . ,
 also, Case f Public a oar . 1, another " le " case involving these
 arties.

 Second, the self-executing provisions containe in Rules and 1f the
 Agreement y e activated by the Carrier r when circumstances so warrant and, as in
 this case, under paragraph , without conducting an Investigation under Rule ,
 rule. Indeed, in on-property Award .73 of Public Law Board No. 4768, the Board
 uphel the Carrier's application of Rule 1 .ia similar case involving an employee's
 failure o request n extension of his leave prior to the specific deadline date,e note.
 T Board wr e:

      "The Claimant faile t request leave extension prior t i, 1 2. The record shows medical requests fro is physician for a leave f absence at an tie. Rule 15 states:


        n employee faili report for r before the expiration their leave f absence ill forfeit all seniority , less

      extension is obtained.'

                                        Form 1 . 7 Docket o. -

                                                --0.-


      Under this self-executing provision, it is clear that the Claimant forfeited his seniority as of April 7,1992. t the same time, however, the Carrier wrote to the Claimant, seeking his compliance under l . . . on the supposition that the Claimant should have reported to ork following his one-week leave to exercise his seniority.


      In its letter, the Carrier gave te Claimant until Aril 7, 19

      provide necessa information. The Claimant contende that hi

      not receive the letter until April . Even then, however, he did not

      take action to provide the necessa information. He was then notified

      y letter dated ay 5,199 , that, in accord with Rule , his seniori

      had been terminated.


      The oar fins tat t Claimant's seniority was renterminated

      un r r Rule 15E ....


Therefore, fro the above a conclude that the Organization's procedural
 objection that the Claimant should have been afforded n Investigation under Rule 40
 is noaseon aritral precedent or the parties' labor contract. Accordingly, the
 rganization's request tat this clai a sustaine for reason of alleged procedural
 error for lack f an Investigatio un er Rule 40 is rected, a rule.

 Third, however, a find that Rule does grant the Claimant the i just Treatment Hearing. Rule provides:

      66 n employe who considers himself unjustly treate in afters other

      than discipline, r in matters other than those arising out of the

      interpretation n application of the rules f this Agreement, shall have

      the same right f hearing n appeal s provi in Rule , if written

      request is made to his immediate superior within twenty (2.0' ) calendar

      days after the date the occurrence f the cause for complaint."


t is the Board's conclusion tat the Claimant was asserting tat she was treate unfairly under the Carrier's contention that Rule 15.E was "self-executing" and let o discretion it the Carrier s regards that Rule's a licatin. She thus presente
 claim f unjust treatment under the Carrier's application of Rule and her sole obtaining due process ruling was under the rubric Rule 2,a hold.
    r 1 r

    Docket -

    -_p--


Fourth, as noted above, eve agree that, under the factual circumstances, the Claimant's December freest for n extension of her leave that had expired on December 1 , 2000, was clearly untimely given the instructions conveyed in the November 16 letter and the clear language of Rule 1 .. The Claimant's testimony at the Unjust Treatment Hearing suggested that she had faxed her request prior to the 11:59 . . deadline on December 1 , but the documentary evidence, i.e., the fax date stamp shin `612119100 0®6," proves otherwise. The documenta evidence also establishes that this is not a case in which the Claimant coul convincingly ue that she vas not aware of her responsibilities under Rule 15., o either report to or immediately upon the expiration f her leave or request an extension prior to the leave's expiration. The Claimant's knowledge f the proper procedures for securing an extension is demonstrated by the timely extensions she had previously sought n August 11, September 16 and November , 200 , emphasize.

 Therefore, a rule that, in this particular case, the Claimant clearlY violated le 15.E when she faile to request her extension prior to the specific deadline 11:59 . . on December 1 , 2000, as already mentioned above. Fro our careful revie of the record, we emphasize, a find that the Carrier's acceptance of the Claimant's late extension request of arch 2, 2000, and its rejection of tece r 1reuest for reason that it was untimely, sent mixed message to the Claimant that ueste that a Carrier s not always punctilious i its application f "slxeting Rule 1 ." Under those facts, the Claimant's siori termination as arbitra and capricious, a hold.

 Moreover, t testimony offered y the Carrier's witness rim the Unjust Treatment Hearing dim not refute the Organization's position tat least e t

 employee, again, the Claimant's relative, Sue Haney-Wilcox, as also permitted extend an existing leave of absence, Haney-Wilcox's untimely request notwithstanding.
 This happened during the same time frame as involved in this claim, we also conclude.
 The Claimant's termination in light of the sufficient evidence that the Carrier had
 treated Haney-Wilcox ore favorably coul indee be construed s "disparate
 treatment." It certainly could have corroborated the Claimant's impression that there
 s leeway for a late filing of the leave requests, rather than the Carrier's contin
 tat no sucisreion exist, because Haney-Wilcox and t Claimant ere relate
 and the Claimant t obviously knew of the leeway given Haney-Wilcox by the Carrier,' we
 are persuaded.

      i ly, we hold that the Carrier's application s

given the i's vet, 2000 letter, fee above, ins that
 For 1 Award No. 37603
 e Pocket . -

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the Carrier was willing to r-evaluate her medical status on Janua 1, 2001. Thus, e specifically find no support for the Carrier's assertion that Haney- ilc's late request for a leave extension was somehow granted only because her situation had been " ore closely monitored" than the Claimant's. The Carrier's use f discretion was evident in tese other instances, we hold.

 The Board tus concludes that Part (1) of the claim must be sustained for all the foregoin reasons. However, given the Claimant's failure to rovtt she had timely filed her request for n extension of her leave, Part (2) f the claim must denied, as explained above. Therefore, the Claimant shall be. reinstated, s provided below, with eiority unimpaired but without the payment of bacar other benefits. The Claimant's reinstatement ilso contingent upon her successful completion of the Carrier's applicable return-to-duty eintin.

                        A


    Clai sustained in accordance wit the Findings.


    This Board, after consideration of te dispute ide tie above, hereby orders that

    award fvorle to t lai ants) e. The Carrier is ordere to make t

Award effective on or before ys following the postmark date the Award is
 transmitted t -t is.

                        TI ADJUSTMENT

                        BOARD y Order of Third Division


to t Chicago, Illinois, this 22nd y f September 2