PUBLIC LAW BOARD N0. 1838
._- Awa;d Nqt 25
Case No. MW-CH-77-3
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement Request on behalf of Jimmie David Sammons for reinstatement
-of to service or in the alternative for a formal investigation.
Claim
Findings The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within
the meaning of the Railway Labor Act, as amended, that this
Board is duly constituted by Agreement dated March 1, 1976,
that it has jurisdiction of the parties and the subject
matter, and that the parties were given due notice of the
hearing held. -
Claimant last worked for Carrier on December 16, 1976. He
called his Supervisor, Roadmaster Wilson Short, on Friday,
December 17, 1976, and asked him for a couple of weeks off.
The Roadmaster advised Claimant that he was needed on the
job and that he could not afford to give him the time off.
Claimant, nonetheless, continued to remain off.
Said Roadmaster, on April 29, 1977,~wrote to Claimant as
follows:
"This is .t-o notify you that you are released from
the service of the Norfolk and Western Railway
Company for failure to comply with Rule 26 of the
_ current Maintenance of Way Agreement which states:
Award No. 25 -1g
page 2
'An employee desiring to be absent from service
must obtain permission from his foreman or the
proper officer. An employee detained from work
on account of sickness or for other unavoidable
cause shall notify his foreman or the proper officer
as early as possible."
Claimant attempted to return to service on November 21, 1977.
lie contended, at that time, that he had been under medical
care after shooting himself. Claimant was advised that he
no longer had an employment relationship with the NEW
Railway Company.
Claimant contacted his Employee Representative, who, on
December 5, 1977, wrote the Roadmaster requesting "that unless
the Claimant be given the opportunity to retar: to work
immediately, that an investigation be held in his behalf".
The Roadmaster replied to the General Chairman, on December 14,
1977, as follows:
"Inasmuch.as your request for formal investigation
is not within the time limit specified.in the current
Maintenance of Way Agreement, it is respectfully
declined."
Rule 33 - Discipline and Grievances - provides in pertinent
part:
"Sa) An employe disciplined or dismissed will be
advised of the cause for such action in writing.
Upon
a written request being made to the employes'
immediate superior by the employe or his duly
accredited representative within ten calendar
days from date of advice, the employe shall be
given an investigation."
(Underscoring supplied)
Here, the bar of time limits had been raised by the Carrier.
The record is clear. The cause of the delay rests with Claimant.
Claimant was advised December 17, 1976 that he could not be
off without permission. He was put on notice on April 29, 1977,
Award No. 25
-1$306
Page 3
and he failed to take any affirmative action. Consequently,
the Board, based on the facts before it, is impelled to conclude
that Claimant having failed to make a written request within
ten calendar days from the date of the advice given him is not
thereafter entitled to be granted an investigation.
Therefore, the instant claim is barred. In the circumstances,
a denial award will serve as well as a dismissal.
Award Claim denied.
A. D. Arnett, Employee Mem er G. C. Edwards, Carrier Member
- C'~
5~a.
Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Salem, New Jersey, December 27, 1979.