Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43923 Docket No. MW-45512 20-3-NRAB-00003-190334
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (AMTRAK)
STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
(1)The Carrier’s decision to terminate Mr. C. Klein’s seniority, by
letter dated October 3, 2018, was arbitrary, excessive and in violation of the Agreement (Carrier’s File BMWE-625 NRP).
(2) As a consequence of the violation referred to in Part (1) above, Claimant C. Klein shall be reinstated to service with seniority and all other rights and benefits unimpaired and he shall be made whole for all wage loss suffered including lost overtime and benefits.”
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 Claimant established and maintained seniority in the Carrier’s service. The Claimant was on an approved medical leave of absence from June 2, 2018 through July 15, 2018. The Claimant did not return to work upon the expiration of the leave, nor did he contact the Carrier. By letter dated September 7, 2018, the Carrier notified the Claimant that he was out of compliance and needed to update his medical information.
There is no dispute that the Claimant did not respond to this letter.
By letter dated September 27, 2018, the Carrier directed the Claimant to provide satisfactory evidence of a physical disability to his supervisor or the letter’s author within five days of said letter. The Claimant did not contact either of these supervisors. On October 1, 2018, the Claimant provided medical documentation to the Carrier’s Leave Management of his disability.
On October 3, 2018, the Carrier notified the Claimant that his employment had been terminated. On October 6, 2018, the Carrier’s Leave Management, apparently unaware of the termination, granted the Claimant a medical leave of absence from October 1, 2018 until November 2018 based on the documentation he provided.
The Organization filed a claim on October 4, 2018, claiming that the seniority termination violated the parties’ Agreement. The Carrier denied the claim on October 19, 2018. The parties were unable to resolve the claim on-property, so it is now before this Board for final adjudication.
The Organization contends that the Carrier improperly terminated the Claimant’s seniority, because the record shows that he complied with Rule 16 when he presented evidence that he was physically disabled and unable to work.The Organization further contends that the Carrier violated the Agreement when it refused to grant the Claimant an investigation under Rule 16.
The Carrier contends that the Claimant was not entitled to an investigation because his seniority was terminated pursuant to Rule 16, which is a self-executing walkaway rule, not a discipline rule.
The Carrier acknowledges that the Claimant provided proof of disability but contends that he did not at any time provide documentation to explain his absence from July 15 to September 27, 2018. The Carrier contends that under Rule 16, any employe who absents himself from work for ten days without notifying the Carrier is considered as having resigned from service.
Rule 16 of the parties’ Agreement provides, in part:
“2. An employee who absents himself from work for ten (10) days without notifying the Corporation shall be considered as having resigned from service and shall be removed from the seniority roster unless he furnished satisfactory evidence of physical disability. Should a dispute arise as to whether or not satisfactory evidence of physical disability has been furnished and the employee makes a written request for an investigation within five (5) days after notice in writing of his removal from the seniority roster, an investigation on the issue as to whether or not satisfactory evidence of physical disability has been furnished will be held in accordance with Rule 15.”
Although the Claimant provided medical documentation of physical disability from June 2, 2018 through July 15, 2018 and from October 1, 2018 through November 2018, the Claimant did not provide satisfactory evidence of a physical disability from July 15, 2018 through October 1, 2018. The Claimant was absent from work for more thantendaysandfailedtoprovideany documentationwhichwouldjustify thatabsence.
Rule 16 permits the Carrier to terminate the seniority of employees who are absent for ten or more days without notifying a supervisor and who fail to provide satisfactory evidence of a physical disability. The rule was negotiated between the parties and is clear and unambiguous as applied to the facts here. Therefore, the claim must be 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 28th day of January 2020.