Parties
to the
Dispute
PUBLIC LAW BOARD N0. 5396
BROTHERHOOD OF MAINTENANCE
OF WAY EMPLOYES
VS.
PACIFIC TRANSPORTATION
COMPANY
(Western Lines)
STATEMENT OF CLAM
1. That the Carrier violated the provisions
of the current Agreement when it refused
to allow Mr. M. Jones to return to work
after a successful rehabilitation from an
auto accident on September 12, 1994. Said
action being excessive, unduly harsh and
in-abuse of discretion.
2. That the Carrier is obligated, in accordance
with Rule 33(d), to accept the documented
evidence and statements of the Claimant's
doctors which were sent to the Claimant's
supervisors, as adequate evidence of the
claimant's disability and thereafter consider him to be on a medical leave.
FINDINGS
On October 19, 1994, Carrier sent Claimant by certified mail
to his Postal box what is referred to in this case as an Appendix
R letter. It stated that Carrier's records indicated that
PLB Case No. 34
NMB Case No. 34
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Claimant had been absent from work since September 12, 1994, and
that, effective October 19, his seniority and employment was
terminated in accordance with Appendix R of the parties' Agreement. The letter~went-on to add that "If you desire, you may,
within thirty-(30) days, submit notification that you request a
hearing be held under Rule 45 of the current agreement." The
letter', "about which the Post Office notified Claimant on October
21, October 27, and November 8, was not picked up and was returned to sender, unclaimed. A hearing was not requested and
carrier maintains that Claimant's seniority was terminated
properly.
The Organization points out that at the time of the incident, Claimant was on a leave of absence for a physical disability in accordance with Rule 33 (d). He was unable to return to
work until April 3, 1995. When he sought to resume his job, he
was informed that his seniority had been terminated.
The Organization argues that if the letter was returned to
carrier on or shortly after November 8, the certified mail was
not available to Claimant for the full thirty days allowed by
Appendix R. Claimant kept Carrier informed of his condition on
October 19 by sending a doctor's update on his status by fax.
Additional updates were sent by fax on November 28, 1994, and
March 10, 1995. Carrier disregarded this information.
5361 40-?f
This Board has reviewed the entire record of this case and
has strong doubts about Claimant's position in this dispute.
Several of the medical forms that he sent to Carrier indicate
that his doctor had released him to return to full work earlier
than April 3-;-1995-(e.g:, January 1, and March 13). At the same
time, no plausible explanation was given for why he did not
receive-a: certified letter sent to his address of record. This
Board has long held that employes may not hang back and refuse to
accept correspondence sent by their employer by recognized means
and then claim a lack of proper notification.
It appears to this Board that Claimant took the position
that he would not return to work until he personally elected to
do so. Claimant had a work commitment to his employer that he
did not fulfill. A termination of seniority was appropriate
under the circumstances.
AWARD
Claim denied.
L
C.H. Gol ,
Neutral Cha rman
(~.- C.F. Foose, D.A. Ring,i \
Employe Member Carrier Memb'r \
··..~
Date of Approval