Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43192 Docket No. SG-44084 18-3-NRAB-00003-170117

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railway Company:

Claim on behalf of D.C. Wehland, for reinstatement to service with all rights and benefits unimpaired, with compensation for all time lost, including overtime and skill pay, starting on July 31, 2015; account Carrier violated the current Signalmen's Agreement, particularly Rules 22, 36, 44, and 54, when it improperly extinguished the Claimant's seniority, which in effect assessed the Claimant the harsh and excessive discipline of dismissal without providing a fair and impartial Investigation. Carrier's File No. 35-16-0004. General Chairman's File No. 15-048-BNSF-119-D. BRS File Case No. 15514BNSF."

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.

The Organization filed the instant claim on the Claimant's behalf, alleging that the Carrier violated the parties' Agreement when it improperly terminated the Claimant's seniority without providing a fair and impartial Investigation on July 31, 2015, for accepting outside employment while on leave. The Carrier denied the claim.

The Organization contends that the instant claim should be sustained in its entirety because the Claimant had been placed on an involuntary medical leave of absence for alcoholism, because the Claimant therefore was disqualified from service for two years, because the Claimant was cleared to return to work on July 30, 2015, after providing required documentation and passing Carrier's medical review, because the Carrier thereafter terminated the Claimant's employment without his right to due process and a fair and impartial Investigation, and because the Claimant did not violate the cited rule. The Carrier contends that the instant claim should be denied in its entirety because the Claimant automatically forfeited his seniority rights and terminated his employment by his own volition when he failed to comply with Rule 36B, because the Organization has agreed that Rule 36B is self-executing, because the Organization has failed to prove that the Carrier violated any of the cited rules, because Rule 36B properly was applied, and because the Claimant's asserted lack of knowledge of Rule 36B's requirements is not a valid defense.

The parties being unable to resolve their dispute, this matter came before the Board.

The Board has reviewed the record in this case, and we find that the Organization has failed to meet its burden of proof that the Carrier violated the rules by implementing Rule 36B when it considered the Claimant having left the service of the Carrier when he was attempting to demonstrate that he had two years of successful sobriety before he was eligible for fitness to return to work. The record reveals that the Claimant was issued a medical leave of absence and it was subsequently extended. The Claimant did fail to request a new leave of absence; and, on top of that, obtained another job. The Carrier's rules prohibit the acceptance of outside employment without permission. Consequently, the Claimant violated a number of Carrier rules and, therefore, the Carrier had a right to move forward with his removal.

The Board has reviewed the entire file, and it is clear that the Claimant worked for the Carrier for more than twenty years. Given that lengthy seniority, as well as the incredible work on the part of the Organization in this matter, the Board has no choice but to order that the Claimant be reinstated to employment but without back pay. The period of time that the Claimant was off shall be considered a lengthy disciplinary suspension. It is clear that the Claimant's actions and behavior were not acceptable, but it was only through the hard work of his Organization that he will now be able to return to work at the Carrier.

The claim is sustained in part and denied in part. The Claimant shall be reinstated to service but without back pay. The period of time that the Claimant was off shall be considered a lengthy disciplinary suspension.

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 May 2018.