Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42355 Docket No. MW-42262 16-3-NRAB-00003-130243

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

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

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

1) The Agreement was violated when the Carrier terminated all of the Maintenance of Way seniority established by Mr. C. Swenson by letter dated prior to December 16, 2011 (System File T-D4063-H/11-12-0162 BNR).

2) As a consequence of the violation referred to in Part (1) above,

the Carrier shall now restore all of Claimant C. Swenson's seniority and restore him to service and he shall now be '*** made whole for any and all losses beginning Monday, December 19, 2011. We specially request that Claimant receive eight (8) hours straight time pay, per work day (Monday through Friday), beginning December 19, we request that Claimant receive compensation for any and all holidays, beginning December 19, and we request that Claimant receive pay for any and all overtime worked on Gang TSEC0234 beginning December 19,

2011. We further request that all time lost from December 19, 2011, onward, be accredited Claimant for Railroad Retirement, vacation, and all insurance accreditation.'"

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.

On December 8, 2011 the Claimant was recalled to the Mitchell Section Gang in South Dakota, starting December 9. During the telephone conversation, he was advised that his mandatory recall was to a Truck Driver Position and he had ten days to report. He was asked if he wanted to take his ten days and he said yes. The response was "Okay. I'll let them know so they won't mark you AWOL."

On Friday December 16, the Claimant called the Manpower Planning office to discuss scheduling Foreman Training classes and was informed that his seniority had been terminated, effective that day. A letter was sent to the Organization advising that the Claimant had failed to report to mandatory recall on gang TSEC0234, resulting in forfeiture of seniority and employment.

It is the Carrier's position that Under Rule 9, the Claimant had ten days, or until December 18, to report for his assignment. However, he failed to do so, resulting in an automatic termination. December 18 was a rest day, meaning the Claimant had to report by the start of shift of the last scheduled workday within the ten-day period, which would have been Friday, December 16. He did not contact Manpower Planning with questions. The Carrier maintains employees are expected to know the rules, and confusion is not an adequate excuse. Rule 9 protects stability in the Carrier's workforce and is clear - if the Claimant did not understand the rule, he could have asked. People cannot ignore the Rule and decide they want more than the allowable days to report. He simply terminated himself.

The Organization argues the Claimant's recall was effective December 9 and that the first day is not counted in the calculation. The Organization alleges December 19 would have been the tenth day from the date of occurrence and the Claimant was terminated while still within his ten-day period. The Organization points out he was a relatively new employee who did not understand how the ten days are calculated and the situation is confusing. It is the position of the Organization this should have been considered a satisfactory reason under the Rule. Proper application of the Rule is equitable, not mechanistic. As long as there is evidence the employee is not being reckless or willful, the Rule should not apply. Ten days had not elapsed, and in the interim he was still inquiring. He was never told how to comply. It was common sense for him to expect a weekend reporting date to roll to the next work day.

The Board has carefully reviewed the record. Rule 9 states as follows in pertinent part:

"[F]ailure to return to service within ten (10) calendar days, unless prevented by sickness or unless satisfactory reason is given for not doing so, will result in loss of all seniority rights.

Note: 1. Employes called back in service in accordance with provisions of Rule 9 must report at starting time of shift to which called within ten (10) calendar days."

The Claimant was notified of recall on December 8. The Organization argues the first day his ten-day eligibility to return to work is not counted. The Carrier agrees that the "first day" is not counted, but begins counting on the day following notification. The provision itself is ambiguous, and does not undertake to define when the ten-day period starts. This creates confusion.

The Claimant's hire date was May 2, 2011, so the Claimant had been on the job approximately seven months when this situation arose. As the Carrier noted, Rule 9 was drafted to protect the Carrier from instability in its workforce. As such, it was for the Carrier to make sure the wording of the provision accomplished its objective. Yet the provision is ambiguous, and it apparently has been interpreted to create an expectation that the ten-day period does not start until one day after the first available work day.

Clearly, the Claimant could have been more assertive in securing his recall and is partly at fault. That said, the record does not support a conclusion of job abandonment. He was in communication with his employer during the ten-day period and, being relatively new to BNSF, had reason to be confused by his situation.

The claim is sustained in part. The Carrier will restore the Claimant's seniority, and will offer him reinstatement into service, subject to the Carrier's return to service policies. His restoration to service shall be without back pay or retroactive benefits.

AWARD

Claim sustained in accordance with the Findings.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 30th day of August 2016.