NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD
OF
MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD N0. 73
Carrier File No. 1 MWB 92-08-20C
Organization File No. S-P-475-W
STATEMENT OF CLAIM
1. The Agreement was violated when the Carrier
improperly closed the service record of employe G. L.
Whitehead on May 5, 1992.
2. The Claimant shall be reinstated to service with
seniority and all other rights unimpaired and he shall be
compensated for all wage loss suffered, including credit
for qualifying time for vacation and personal leave days
as well as health and welfare benefits and he shall be
allowed any promotional opportunities lost while he was
withheld from service. In addition, the Carrier shall
convene the unjust treatment hearing to be held in
connection with the Claimants disqualification as a
cook which, after being scheduled for May 8, 1993, was
unilaterally canceled by the Carrier.
F I N D I N G S
The Claimant, a Cook, asked for a medical leave of absence in
March 1992 as the result of an esophageal condition. To support
this request, he provided a note from his personal physician which
requested that the Claimant be put "on light duty" (no on leave of
absence) for a period of six weeks.
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In response to this, the Manager, Manpower Planning wrote to
the Claimant on March 27, 1992 as follows:
Per your request dated March 27, 1992, you are
hereby granted a 5-day medical leave of absence from
March 30, 1992 through April 6, 1992.
It is understood that you may return to work prior
to April 6, 1992, with a release from your doctor and
notification to your supervisor. Also, you will be
required to take a physical examination from a company
physician prior to returning. Please contact your roadmaster for a physical order form.
If you need an extension of this leave, please contact this office in writing prior to expiration of your
leave with a note from your doctor recommending the
additional time.
The Claimant failed to request a leave extension prior to
April 6, 1992. The record shows no medical requests from his
physician for a leave of absence at any time. Rule 15E states:
An employee failing to report for duty on or before
the expiration of their leave of absence will forfeit all
seniority rights, unless an extension is obtained.
Under this self-executing provision, it is clear that the
Claimant forfeited his seniority as of April 7, 1992. At the same
time, however, the Carrier wrote to the Claimant, seeking his
compliance under Rule 9, Retention of Seniority by Laid off
Employes, on the supposition that the Claimant should have reported
to work following his one-week leave to exercise his seniority.
In its letter, the Carrier gave the Claimant until April 27,
1992 to provide necessary information. The Claimant contended that
he did not receive the letter until April 29. Even then, however,
he did not take action to provide the necessary information. He
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was then notified by letter dated May 5, 1992, that, in accord with
Rule 9, his seniority had been terminated.
The Board finds that the Claimant's seniority was properly
terminated under Rule 15E. He nevertheless had a further opportunity to retain employment under Rule 9, but he failed to take the
necessary steps. Pending disciplinary measures as to the
Claimant's performance as a Cook are without relevance here. There
remains no rational basis to sustain the claim.
A W A R D
Claim denied.
HERBERT L. MARX, Jr, Chairman and Neutral Member
MARK J. S PPAUG , · loyee Member
DLg..
ME Carrier Member
NEW YORK, NY
DATED:
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