PUBLIC LAW BOARD N0. 3530
Award No.: 95
Case No.: 95
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK AND WESTERN RAILWAY COMPANY
STATEMENT QF CLAIM
Claimant, D. R. Ross, Rt. 1, Box 288, Rice, VA 23966 was
dismissed from service on July 20, 1988 for alleged failure to
report to work thereby forfeiting his seniority. Claim was filed
by the Employes in accordance with Railway Labor Act. Employes
reqsest he be reinstated with pay for all lost time with vacation
and seniority rights unimpaired.
FIND
By letter dated May 2, 1988, Claimant was notified that he had been
absent from his assignment since April 26, 1988. This letter directed
Claimant to contact the Carrier within ten days or forfeit his seniority.
Claimant called the Carrier on May 6, and stated that he was off duty
because
he
had been under a doctor's care. At that time he was directed to
provide proof of his disability. By letter dated May 20, 1988, Claimant was
again directed to provide written proof of his disability with a statement
from his doctor, Claimant received the May 20 letter, but did not respond.
By letter dated July 1, 1988, Claimant was advised that no explanation had
been received, and he was directed to return to work within ten days or
353o-qs
forfeit his seniority. Claimant received but did not respond to the July 1
letter.
On September 20, the Organization requested Claimant be restored, and
attached a brief explanatory statement from Dr. C. J. Crosby releasing
Claimant from his care as of September 15, 1988. The Carrier denied the
Organizations request to conduct an investigation on this matter.
Rules 30 (h) and 16 provide as follows:
Rule 30 fh)
An employee who considers himself otherwise unjustly treated shall
have the same right of hearing and appeal as provided for in this
Rule 30 if written request is made to his immediate superior
within tan calendar days of cause of complaint. This rule does
not apply to grievances in connection with time claims, which must
be submitted and progressed in accordance with the provisions of
Rule 31.
Rule 16
Furloughed employed desiring to retain their seniority rights
must file their address and phone
number in
writing with the
Supervisor-MW Personnel, Roanoke, Virginia, within ten calendar
days from the date of the first reduction occurring after the
effective date of this Rule 16. (Furloughed B&B Sub-Department
employees should advise the Supervisor-B&B on their home divisions.) Thereafter, renewal of such notice will not be required
after such first notice is filed, but the Supervisor-MW Personnel
or Supervisor-B&B must be immediately
notified in
writing of any
change in address and telephone number. Failure to employees to
comply with these provisions (except phone number) or to return to
the service within ten calendar days after being officially
notified in writing, without satisfactory reason for not doing so,
or unless a leave of absence has been obtained, will cause
forfeiture of all seniority rights.
The issue to be resolved in this dispute is whether the Carrier
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353o-~s
violated the Agreement when it determined that Claimant had forfeited his
seniority rights; and if so, what should the remedy
be.
The position of the Carrier is that it properly determined that
Claimant had forfeited his seniority rights because Rule 16 was selfexecuting, and the Organization presented no evidence that Claimant was
disabled. Claimant, according to Carrier, simply chose not to respond to
his recall notice. Carrier maintains that the evidence of Claimant's
failure
to
respond to recall notices is clear on its face and contends that
the Organization has failed to meet its burden of proof because it has made
no showing that Claimant was suffering from a medical disability. Carrier
further contends that the alleged evidence of Claimant's disability was
submitted well after the ten day deadlines set forth in the letters and as
required by Rule 16. Moreover, Carrier maintains that the notes from Dr.
Crosby do not prove Claimant was disabled, rather they only indicate that
Claimant was under Crosby's care and that Claimant had visited Crosby on
eight occasions, Finally, the Carrier maintains that since Rule 16 is selfexecuting, there is no obligation to conduct an investigation.
The position of the Organization is that the Carrier violated the
Agreement when
it
determined that Claimant had forfeited his seniority
rights for the reason that he was under a doctor's care during the period
from May to November 1988. The Organization contends, by implication, that
Claimant
was
disabled during this period and could not report for duty.
After review of the entire record, the Board finds that the Carrier
did
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not violate the Agreement when it determined that Claimant had forfeited his
seniority rights.
The Carrier has established by substantive credible evidence in the
record that Claimant was absent from bis assignment, and that when he was
recalled to his assignment he failed to respond adequately. Further, the
Organization has failed to meet its burden of showing that Claimant was
disabled and thus justifiably absent from his assignment. Carrier has a
right to expect employes to report to work regularly or to present an
adequate explanation. Rule 16, which is self-executing, embodies this
concept. The evidence in the record is clear that Claimant simply was not
at work, and did not provide an adequate excuse. Under the provisions of
the Agreement, he forfeited his seniority rights. The Carrier was not
required to conduct a formal investigation of this matter, under the
circumstances.
AWARD
Claim denied.
Data:
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