PUBLIC LAW BOARD NO. 5905
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEE )
Case No. 1
and )
Award No. 1
ELGIN, JOLIET AND EASTERN RAILWAY COMPANY )
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay, Organization Member
J. F. Ingham, Carrier Member
Hearing Date: October 10, 1996
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it removed
Painter Foreman J. T. Manstis from service without the
benefit of a fair and impartial hearing pursuant to
Rule 57 (Organization File SAC-6-95; Carrier File UM-9
95) .
2. Painter Foreman J. T. Manstis shall now be
reinstated with seniority and all. other rights
unimpaired and compensated for all wage loss suffered.-
FINDINGS:
Public Law Board No. 5905, upon the whole record and
all of the evidence, finds and holds that Employee and
Carrier are employee and carrier within the meaning of the
Railway Labor Act, as amended; and, that the Board has
jurisdiction over the dispute herein; and, that the parties
to the dispute were given due notice of the hearing thereon
and did participate therein.
On March 10, 1995, Claimant was involved in an accident
while operating a Carrier truck. Pursuant to notice, an
invedtigation was held on March 21, 1995. Claimant was
found to have been responsible for the accident and, in
light of his past record, was dismissed from service. The
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Organization filed a claim which was denied and then
appealed. Carrier's highest officer in the chain of appeal
granted Claimant reinstatement, on a leniency basis,
conditioned, among other things, on Claimant's enrolling in
a defensive driving course and furnishing proof of passing
the course within sixty days of his return to work. On
January 17, 1996, Carrier notified Claimant that, because he
had failed to complete the defensive driving course within
the prescribed time period, he was being returned to a
dismissed status.
The Organization contends that Carrier violated Rule 57
by not providing Claimant with a hearing before dismissing
him in January 1996. Carrier maintains that no hearing was
required because Claimant failed to comply with a condition
of his reinstatement. Thus, in Carrier's view, return to
dismissed status was automatic.
The Board has reviewed the record developed on the
property carefully. Carrier's offer of reinstatement stated
clearly:
Strictly without precedent or prejudice, I am
agreeable to removing the 30 demerits and
reinstating Mr. Manstis on a leniency basis, with
full seniority and all other rights unimpaired,
but with no pay for time he has been out of
service. This offer is conditional upon his
enrollment in a defensive driving course. He must
furnish proof of passing such a course within 60
calendar days after his return to work. He must
also pass a standard return-to-work physical,
including a drug screen.
Both Claimant and the General Chairman signed the offer,
indicating their acceptance of it. By its own terms,
Claimant's reinstatement was conditioned on his enrolling in
a defensive driving course and furnishing proof of passing
the course within sixty days of his return to work.
Claimant failed to furnish such proof-within the prescribed
time period. Thus, one of the conditions for his
reinstatement was not fulfilled. This was not a case of a
new dismissal requiring a new hearing. Rule 57 was not
violated.
Carrier's offer of reinstatement clearly and
unambiguously placed the responsibility for fulfilling the
conditions on Claimant. Claimant signed the offer. If
Claimant did not understand what was required of him, he
should have inquired. Claimant, and Claimant alone is
responsible for not fulfilling the conditions and for his
return to a dismissed status. '"
AWARD
Claim denied.
J.J.
F.
Ingham ,
Carrier Member
Martin H. Malin, Chairman
Dj
. Bartholomay,
Orga ization Member
Dated at Chicago, Illinois, February 6, 1997.
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