PUBLIC LAW BOARD N0. 2774
Award No. 71
Case No. 103
PARTIES Brotherhood of Maintenance of Way Employees
and --
DIPUTE Atchison, Topeka and Santa Fe Railway Company
STATEMENT "1. That the Carrier violated the provisions of the current agree
OF CLAIM ment when on February 23, 1983, it removed Trackman R. 0.
Jiminez's name from the appropriate seniority roster and
terminated his seniority and employment relationship with the
Carrier, and in so doing, caused claimant loss of compensation
rightfully belonging to him by virtue of his seniority rights .
under the current agreement.
2. That claimant R. 0. Jiminez's name now be placed on the appro
priate seniority roster and that his employment relationship
and seniority be reinstated with compensation for all wage loss
suffered and all seniority rights restored unimpaired."
FINDINGS
Upon the whole record, after hearing, the Board finds that the parties herein
are Carrier and Employees within the meaning of the Railway Labor Act, as
amended, and that this Board is duly constituted under Public Law 89-456 and
has jurisdiction of the parties and the subject matter.
By letter dated January 28, 1983, the Carrier informed claimant, as well as
a group of other employees, that they would be force reduced at the close of
work on February 4, 1983. Carrier insisted that it never received the address of
claimant within the fifteen days specified in Rule 2 of the agreement and, hence,
subsequently on February 23, 1983, claimant received a letter indicating that he
had been severed from the rolls since no recall address had been received from
him. It is also noted that there were three other employees similarly dealt
v
with with respect to the layoff letter of January 28.
The Organization insisted that claimant was wrongfully terminated because he
had filed his address in the normal fashion in the mails on February 10,_1983,
and that the U.S. Mail had misplaced or lost his letter. The Oraanization
insists therefore that he should not be held responsible for the Postal Department's
PLB No. 2774 Award No. 71
Case No. 108
mishandling and should not have been terminated.
Rule 2, Section (c), Paragraph 4, of the agreement provides in part as follows:
"Employees laid off in force reductions-shall retain their
seniority provided they (1) file their addresses in writing
within fifteen (15) calendar days after being displaced;
and (2) promptly report in writing any subsequent changes
in their addresses ...."
Carrier insists that February 19 was the fifteenth day following the furlough and
no recall addresses were received from claimant and, therefore, claimant was _
properly cut off the seniority roster.
It is clear that the burden of establishing that the letter with the address
was received by Carrier was with Petitioner. No proof is on the record in
support of Petitioner's contention. The presumption that the letter was received
because it was deposited in the U. S. Mail is a rebuttable presumption (Third
Division Award 11505). Many awards in related disputes have been decided in
this industry. With respect to this Carrier and Organization, Public Law Board
No. 3308 in Award No. 19, held as follows:
"Carrier contends that claimant did not file his address in
writing as required within fifteen (15) days of furlough and
since this rule is self-executing, the claimant automatically
lost his seniority.
We have reviewed the record in detail and find probative evidence to support Carrier's contention that the claimant failed
to file his address, in writing, as required within fifteen
(15) days of furlough.
Rule 2, Section (c), is self-executing. Such position has been
upheld by numerous awards by various divisions of the National
Railroad Adjustment Board. This Board can find no fault with
such reasoning, therefore, we hold that the agreement was not
violated."
The Board herein can find no basis for disagreeing with the reasoning expressed
in the award cited above. Clearly claimant did not comply with the requirements
of Rule 2 and, therefore, the claim must be denied.
PLB No. 2774
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No. 71
Case No. 108
AWARD
Claim denied.
..M. Lieberman, Neutral-Chairman
.. r~oose,mp oyee Member Garmon, Ca rier Member
Chicago, Illinois
July z3,
1984