Case No. 9


PARTIES TO DISPUTE:
 Brotherhood of Maintenance of Way Employees
 and
 Norfolk and Western Railway Company
 STATEMENT OF CLAIM:
 1. The carrier violated the effective Agreement
 dated February 1, 1951 when, on April 5, 1977, °
 it unfairly and unjustly removed claimant
 Albert Burton from service.
 2. The claimant be restored to service with
 seniority, vacation and all other rights unim
 paired and that he be paid for all monies loss
 suffered by him, beginning April 5, 1977 and
 up to the date he has been reinstated. .
 FINDINGS: '

        This Board upon the whole record and all the evidence finds that:

The Carrier and employee involved in this dispute are respectively
 Carrier and employee within the meaning of the Railway Labor Act,
 as amended.
 OPINION:
 The record shows that the Claimant held "dual" or"over
 lapping" seniority in two seniority districts: the "Ft. Wayne"
 and "Lake Erie" districts. He was on furlough when, by letter
 of recall receipted March 18, 1977, by the Claimant, he was re
 quired to report to the R-3 Gang (Ft. Wayne Div.) within 10
 days in order to comply with the provisions of Rule 5 (a) -
                                            flwd. s~®e~a~


Retention ofteaiority in force Reductlk -- reproduced, in pertinent part, as follows: .

 "_Employees failing ... to return to service within ten days for a regular bulletined position after having been notified in writing by their superior officers. will forfeit all. seniority un-. Less a leave of absence is obtained under the. provisions of this agreement.'! The Claimant did not so report: The record also indicates that, by letter dated Marclr ZS;. L977, the Carrier notified the Claimaat to: report to work. to the T=5 Gang (Lake Erie), which he did within 10 days. He worked a day or so before. being removed from service for-failure to comply with the

 initial letter of recall. .-
 According to the Garrier,'the provisions of Rule 5(a),
 heretofore quoted,, are "-self-executing" and the Claimant es
 sentially dismissed himself by failure to comply. According
 to the Organization,, the .Claimant was ill, under -a docbors
 care and unable to comply with the initial recall letter,
 thus coming under the provisions-of-Rule 49 - Leave of Ab
 sence, Section (a): "During personal illness or physical dis
 ability employees will.be granted leave of absence until able
 to return to work." There is no evidence on the record of
 a doctor's statement. in that regard.
 We. find the Organization's asseted defense of the
 Claimant's illness. or under a leave of absence unsupported
 _2_
 AWD 3I - X837 on the record. We are inclined, however, to give the Claimant the benefit of the doubt over the confusion raised by receipt of two recalls in which the 10-day reporting requirement overlapped. An argument could reasonably be made that the Carrier would know two such recalls were issued and, presumably, he had a choice.
 While we shall not entertain a proposal for back pay in this case, we shall order that the Claimant be reinstated to his position with full seniority. AWARD:
 Claim is affirmed to the extent set out in the Opinion, to be effective within 10 days of receipt of a full executed AWARD.

                Jamo F. SCearce, Neutral Member


G. C. Edwards, Carrier Member W. E. LaRue, Organization
 Member
 Dated at L ~ this 12- day of LILcL.d ,1980

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