PUBLIC LAW BOARD N0. 2960
AWARD N0. 111
CASE N0. 148
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly
closed the service record of W. J. Marusiak and shall
now be required to reinstate Mr. Marusiak with all
rights unimpaired and compensate him for
all
wage loss
suffered. (Organization File 9T-4416; Carrier File 8184-178).
OPINION OF THE BOARD
This Board, upon the whole record and all of the evidence,
finds and holds that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning of
the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.
The basic facts are undisputed. On November 28, 1983, the
Claimant forwarded two copies of an application for a leave of
absence to Roadmaster Brook Nelson at 325 Spencer, West Chicago,
Illinois. The request was necessitated due to being convicted on
PLB-2960 Award No. 111
charges of delivery of controlled substances and drug conspiracy.
The request, regardless of when it was received, was denied.
After the Claimant had been absent from service for more than
30 calendar days, he was advised by a letter dated December 30,
1983, that his employment was terminated effective that date.
During the handling of the claim on the property, the Parties
discussions were limited to arguments whether, under Rule 54, the
Carrier was obligated to grant the Claimant a leave of absence.
Our scope of review is necessarily limited to that issue and those
arguments.
Rule 54 states:
"Employes will be granted leave of absence when they can be
spared without interference to the service, but not to exceed
six months within a calendar. year, except when serving on
committees for the Bortherhood of Maintenance of Way Employes,
or in case of sickness or injury
of
the employe or a member of
his immediate family.
"An employe who fails to report for duty at the expiration of
leave of absence will be considered out of service.
"Employes who enter business or engage in other employment
while on leave of absence will forfeit their seniority unless
special arrangements shall have been made by agreement between
the Officer in Charge of Labor Relations and the General
Chairman.
"An employe desiring to remain away from service must obtain
permission from his-Supervising Officer. A11 authorized
absences of thirty 130) calendar days or more will be in
writing and made a matter of record on regularly prescribed
form and copy of same will be furnished employe.
"Employes elected or appointed to full time official positions
of the Brotherhood will be granted leave of absence for the
terms of their office.
"An employe receiving a disability annuity under provisions of
the Railroad Retirement Act will retain seniority until he
attains the age of 65, but his assigned position will be
bulletined as a permanent vacancy. Should he recover
PLB-2960 Award No. 111
sufficiently to resume service prior to reaching the age of
65, he will be considered as in posession (sic) of displacing
rights."
The Organization argues that under Rule 54, the Carrier was obligated to grant the leave of absence and thus, had they granted it,
the Claimant would not have been terminated. The Carrier argues
that. they were not obligated to grant the leave of absence.
It is the opinion of the Board that no violation of the Agreement occurred. While Rule 54 may significantly constrict Management's discretion in granting leaves, there is no reason to believe
the Parties intended to require the Carrier to grant all leave
requests -- no matter what the reason. It is well established that
incarceration is not a valid basis to request a leave of absence.
Accordingly, under the unique facts and circumstances of this
case, the Claim is denied.
AWARD:
The Claim is denied.
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