NATIONAL. MEDIATION BOARD
PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
)Case No. 134
and )
Award No. 122
UNION PACIFIC RAILROAD COMPANY )
Martin H. Malin, Chairman & Neutral Member
T. W. Kreke, Employee Member
D. A. Ring, Carrier Member
Hearing Date: February 7, 2008
STATEMENT OF CLAIM:
(1) The Agreement was violated when the Carrier improperly terminated the seniority
of Mr. C. Williams while he was under medical restriction from performing
normal work activities and following an April 8, 2004 recall to a sectiomnan
position on Gang 4832 (System File C-0423-101/1405484).
(2) As a consequence of the violation referred to in Part (1) above, Mr. C. Williams
shall be allowed to report to the named position he was recalled to with all
seniority restored to him unimpaired and that he be compensated for all lost wages
he should have received from May 14, 2004, had he been allowed to place himself
on his assigned position on Gang 4832, continuing until the violation of our
Collective Bargaining Agreement as described in this claim ceases.
FINDINGS:
Public Law Board No. 6302 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.
Claimant was furloughed on November 28, 2003. By letter dated April 8, 2004,
addressed to Claimant's last address of record, Carrier recalled Claimant to service. Because
Claimant had failed to notify Carrier of a change of address, the letter was returned to Carrier
unclaimed. On April 26, 2004, Carrier terminated Claimant's seniority for failing recall.
The record reflects that beginning in January 2004, Claimant was under a doctor's care
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a
for a hernia repair. Complications arising from a fall early in his recovery from surgery
prolonged Claimant's recovery period and he was not released by his doctor until May 12, 2004.
On May 14, 2004, Claimant inquired into the status of bids he had placed on May 6, 2004, in
anticipation of returning to service, and was advised that his seniority was terminated on April 26
for failing recall.
At issue in the instant case is the relationship between Agreement Rules 21(f) and 23(d).
Rule 21(f), relied on by Carrier, provides:
Employees who do not elect to remain in service through the exercise of displacement
rights or who are unable to do so will be furloughed. In order to be eligible for recall and
in order to avoid any forfeiture of seniority under recall provisions, employees must have
on file at all times a current address with the Director of Non-Op Personnel Services
in
Omaha, Nebraska. In conjunction with the January 1" seniority information letter
transmitted to each employee retaining seniority on the Maintenance of Way rosters,
employees will be asked to advise of any change in their current mailing address. Advice
of any change in address must be transmitted via U.S. Mail within ten days of the charge
to ....
All notices of recall will be transmitted to the last address of record. Employees
failing to respond to recall letters transmitted via certified mail to the last address of
record will be subject to the seniority forfeiture provisions of the Agreement.
Rule 23(d), relied on by the Organization, provides:
The forfeiture of seniority requirements of (b) and (c) will not be applied if satisfactory
reason for not reporting in a timely fashion is given, or an extension of the time limit
specified in (a) is agreed to by the designated Carrier Officer and General Chainnan
involved. Satisfactory reason for failing to report has reference to sickness or other
reasons over which the employee has no control.
The issue is whether Rule 23(d) effectively provides an exemption from Rule 21(f)'s
requirement of timely notice of a change of address by furloughed employees. We hold that in
this case it does not. There is no indication in the record that Claimant's medical condition made
it impossible for him to notify Carrier of his change in address. He simply neglected to do so.
Had Claimant notified Carrier of his new address, the recall notice would have come to him and
he would have been in a position to take advantage of Rule 23(d) and obtain an extension of the
recall time limit. Had Carrier refused such an extension, Rule 23(d) would have aided Claimant
in pursuing a claim. However, Claimant's failure to update his address short circuited Rule 23(d)
from operating. We find that Rule 21(f) controls the instant case and that Claimant forfeited his
seniority when, because he neglected his obligation to keep his address current, he failed recall.
We note that Carrier has also urged that the claim be dismissed as untimely. Because we
deny the claim on its merits, we see no need to reach the timeliness argument.
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iP302.
A c.3a rd I Q·;Z
AWARD
Claim denied.
i
IX49
Martin H. Malin, Chairman
r
D. . Ring T. . Kreke, Em oyee Member
Carrier Membe
r
L
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ate d at thicago, Illinois, May 31, 2008
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