PUBLIC LAW BOARD NO. 4219 CASE NO. 9
PARTIES Brotherhood of Maintenance of Way Employes
TO THE
DISPUTE: and
Union Pacific Railroad Company
STATEMENT OF THE CLAIM:
1. That the Carrier violated the provisions of the
current Agreement when on April 2, 1988 it removed Mr.
E. Otero, SSN 538-68-8853 name from the Seniority
Roster. Thus violating Rules 23, 23 (b) and Rule 48.
Said action being unwarranted and in abuse of
discretion.
2. The Carrier further violated the terms of the
current Agreement specifically Rule 49, when the
Manager of Program Services failed to respond in a
timely fashion to the organizations initial claim of
April 20, 1988.
3. That the Carrier now be required to restore
Claimant to his former position with seniority and all
other rights restored unimpaired and with compensation
for all wage loss suffered.
OPINION OF THE BOARD:
Claimant was employed by the Carrier as an Extra Gang
Laborer on the Idaho Division, with a seniority date of August
27, 1984. As of July 7, 1985, Claimant established seniority in
Group 26, which works on the Carrier's System Gangs. He was
furloughed in September 1987.
On March 21, 1988, the Carrier sent Claimant a letter of
recall to System Gang 9013, working near Troutdale, Oregon. The
Carrier used its usual recall notice, which advised Claimant:
Failure to report within ten (10) calendar days will
result in the forfeiture of seniority in the class in
which recalled and in all lower classes in which
seniority is held, unless prior to the expiration of
P.L.B. 4219
Award No.
Case No. 9
the reporting period, justifiable cause for not
reporting is furnished.
This was pursuant to Rule 23 (b) of the Agreement which states:
(b) Furloughed employees must return to service in
the seniority class in which recalled within ten (10)
calendar days after being recalled by certified mail at
the last address of record. Failure to report will
result in forfeiture of seniority rights in such class
and all lower classes of groups in which seniority is
held, unless satisfactory reason for not reporting in a
timely manner is given. Satisfactory reason for
failing to report has reference to sickness or other
reasons over which the employee has no control.
Claimant's last address of record was his parents'
residence, and it was there that the Carrier mailed his recall
notice. The notice, which arrived at his parents' residence on
March 24 or 25, 1988, instructed Claimant to report on April 4,
1988. However, Claimant states that he was not made aware of the
notice by his family until April 2, 1988, and then temporarily
lacked the funds to comply. On April 11, 1988, Claimant
contacted the Carrier to explain his situation and was advised
that he was deemed to have forfeited his seniority when he did
not report or submit an excuse as of April 4. Claimant
thereafter wrote a letter, received by the Carrier April 18,
1988, requesting reconsideration of his case. When that letter
got no response, the organization filed this claim dated April20, 1988.
The claim asserted that Claimant had given the Carrier
"satisfactory reason for not reporting in a timely mariner,"
2
P.L.B. 4219
Award No.
Case No. 9
within the meaning of Rule 23(b). The Organization argued that
the short notice to Claimant, coupled with his cash-poor
financial condition, warranted that he be given another chance
with additional time to report. However, this ignores that (1)
the Carrier sent the recall notice to the correct address, in
conformity with Rule 23(b); (2) Claimant had the notice for at
least two days before the date upon which he was due to report,
yet neglected to notify the Carrier that he cduld not comply;l
and (3) Claimant's reasons for his inability to comply with the
notice had nothing to do with sickness or any similar disability
beyond his control.
The Carrier official to whom the claim was addressed did not
officially respond to the claim until August 3, 1988, three and
one-half months after the claim had been filed. He then denied
it for the reasons outlined above. Upon receipt of his written
denial, the organization wrote the Carrier to state that the
denial was rejected and the claim would be pursued. That letter,
dated August 11, 1988, also argued that the claim "was not denied
within the time limits, therefore this grievance and claim should
be allowed as presented." For this latter proposition, the
organization relied upon Rule 49(a)(1) of the Agreement which
1 In fact, he first contacted the Carrier a full week
after the date he was supposed to report, and some ten (10) days
after he acknowledges becoming aware of the notice.
3
P.L.B. 4219
_ Award No.
Case No. 9
provides:
All claims or grievances must be presented in
writing by or on behalf of the employe involved, to the
officer of the Carrier authorized to receive same,
within sixty (60) days from the date of the occurrence
on which the claim or grievance is based. Should any
such claim or grievance be disallowed, the Carrier
shall, within sixty (60) days from the date same is
filed, notify whoever filed the claim or grievance (the
employe or his representative) in writing of the
reasons for such disallowance. If not so notified, the
claim or .grievance shall be allowed as presented, but
this shall not be considered as a precedent or waiver -
of the contentions of the carrier as to other similar
claims or grievances.
When the Carrier persisted in denying the claim, it was
progressed to this Board for determination.
The Carrier argues that Rule 23 (b) is self-effecting. In
the Carrier's view, Claimant's failure to comply with the recall
notice automatically resulted in the forfeiture of his seniority,
and that forfeiture was not grievable under the Agreement.
Therefore, the Carrier argues, the claim was a nullity when
filed, and the carrier was not required to respond at all.
The Organization responds that it has as much right to claim
a violation by the Carrier of Rule 23 as it has to claim a
violation of any other provision of the Agreement. The
organization points out that there is nothing in Rule 23 stating
that the Carrier's interpretations of that rule are specially
immune from challenge. Here, the Organization contends that the
Carrier violated Rule 23 by deeming Claimant to have forfeited
4
P.L.B. 4219
Award No.
Case No. 9
his seniority even though Claimant had a "satisfactory reason"
for failing to report when required.
However, the reasons asserted by Claimant are clearly not of
the sort which may be regarded as "satisfactory" within the
meaning of the rule. Rule 23 (b) declares that a "satisfactory"
reason must involve illness or a similar disabling circumstance
which is beyond the employee's control. That Claimant's family
failed to timely apprise him of the recall notice is not a
sufficient excuse. The rule incorporates a presumption that ten
days' written notice to an employee's last recorded address is
enough to enable him to report for work. The Carrier gave
Claimant at least that much notice. He must bear responsibility
for failing to ensure that the notice, once properly delivered,
came promptly to his attention.
Similarly, Claimant's cash shortage was not a
sufficient
reason for his failure to report. The organization suggests that
his financial plight was the Carrier's responsibility and not
Claimant's, because had the Carrier not furloughed him, he would
not have been short of cash. That reasoning is circular. By its
terms, Rule 23 (b) applies only to furloughed employees. The fact
that Claimant was on furlough cannot possibly be an excuse for -
his failure to comply with a rule that only applies to furloughed
employees.
Therefore, it is plain that-Claimant failed to present the
5
P. L. B. 4219
Award
No.
Case
No.
9
Carrier with a satisfactory reason for failing to report in
conformity with the recall notice.- The remaining question is
whether the claim must nevertheless be sustained because the
Carrier's official did not deny it within sixty days after it was
presented. This Board thinks not.
There is persuasive precedent that, under provisions like
Rule 23(b), an employee automatically ceases to be an employee
when certain circumstances occur, i.e., the employee fails to
report within ten days after a recall notice is delivered to his
last address of record. See, Third Division Award No. 22662
(1979): P.L.B. 4111, Award No. 4 (1987). When those events
occur, the employee forfeits his seniority not by virtue of any
action or decision by the Carrier, but by simple operation of the
negotiated rule. The only way the employee may obtain relief is
by presenting evidence that he was precluded from reporting by
factors. truly beyond his control.
If the employee presents evidence that such factors
prevented his reporting, the Carrier's undue delay in responding
to the claim may warrant that it be sustained as presented. In
this case, however, Claimant failed to even allege circumstances
that would constitute an excuse under Rule 23(b). To require
that his claim be.sustained would do damage to the Agreement. It
would encourage every employee who fails to comply with a recall
notice without good reason to file a claim on the mere hope that
6
P.L.B. 4219
Award No.
Case No. 9
the Carrier might be late in responding. That would simply
burden the Parties' dispute resolution procedure with meritless
claims, to the detriment of claims meriting consideration.
instead, a grievarfce which fails to assert even a colorable claim
for relief under the Agreement should not be sustained merely
because the carrier did not promptly reply to it.
Accordingly, the claim is denied.
AWARD
Claim denied.
La ont E. Stallworth, Neutral Member
RD c
C. F. Foose, Organization Member , Carrier Member
Dated this
21 J-1
day of ~, 1990.
7