PUBLIC I-AW BOARD - 'fit(). 640,1

Case No. l I Award No. 11

PARTIES Brotherhood of Maintenance of Way Employes

t o -artd-

I)ISPIaTh;: Grand Trunk Western Railway

STATEMENT (3F CLAIM:

`'Claim in behalf of Mr. R Duncan. This is the result ofan April 2, 2002 letter sent to Mr. Duncan informing that he had forfeited all seniority under Rule 11, Section 3

Request all wages, credits and benefits beginning March 25, 2002 and continuing, due to violations of Rule 4; Section 3 and Rule-72."

FIN-I)INGS: The fofo«Ong is the sequence of events involved in this case-

s On Februarv I t and 26, 2002_ the C'.arner wrote to the claimant anti advised

that the 2002 4'raek Program Season was about to start anti. since he was irr a

furloughed status over 90 days, a return to %vork physical examination would

be required prior to his return to service. They instructed hire where to take

his physical and emphasized that it was his responsibility to report for a

return to work physical. They also informed him that he would not be

allowed to return to service until they had the results of his examination

2 Can March 19, 2(302, the Carrier sent the claimant a certified letter, which tie

received on March 20, 2002, wherein he was formally recalled to service

efectiye Monday, March 25, 2002 I'he Carrier also pointed out in the letter

that lie lead not taken has return to work physical.

()n March 25, 2002, the claimant repartod to the work. ;it; -w;ttx0ut hazin,(V

taken the required physical examination. I to was sent home and ad "sed that

he could not return to service because lie had not been ,)hvslcallv examined

On April 2, 2002, the Carrier sent the claimant a certified letter adVisinQ

him that he had forfeited his seniority pursuant to Role t. Sectiotl 3 of

,hc IWNVE Ap-roernent

5 Can April 4, 2002, the claimant went to the medical clinic k,.,hcre he lead hecn

previously instructed to report. Latter that day, he called the Carrier anti told

them that he had taken a return to work physical. hov,!!ever, the CcIMet

_td'vised him that it was too late, in that he had voluntarilv forfeited his

seniority because lie did not return to service on car about March 26, 2( tt'),2

PLR ?~ tt. 6461 G I 1 /A- I 1
Page 2
Pie Carrier contends that Rule 4, Section 3, clearly stipulates that an employee "must return to service within seven days from the date notified by certified mail" f hey assert that the phrase "return to service" nicans that an employee must complete whatever prerequisite action is necessary to return to service, and perform service within the 7-clay time limit listed in Rcale 4 They also point to the fact that the collective bargaining agreement does not restrict or preclude the Carrier from requiring employees to be physically examined prior to them let"r:-n to per-ri;.~ From furlough.
The Carrier also asserts that the claimant is no stranger to the recall from furlough physical ekarnination requirement They point to the fact that since his date of hire in 1 aS8, he had been furloughed 7 times for more than 90 consecutive days. and on each occasion he took a pl;\-srcal e.Kamination prior to his return to service They contend that the only logical reason why the claimant deliberately tried to return to service \vithout first taking the required physical examination was to evade the drug test; kno-,ving that if he tested positive. he would have automatically returned to a dismissed status without right of appeal
The Organization asserts the agreement does not state that an employee must have a physical examination prior to their return to work 'they contend, in any event, that he ccmptied wit"-: ;l;e requirements of Rule 4, as evidenced by the fact that he reported for work tvithin the prescribed

·.ime liM.it, but was sent home.
After due study of the entire record, includinf; the arguments presented by the parties in support of their respective positions in this- case, the Board finds the claim to he non-mcritoriMIs
The recall from furlough process, that includes a required return to duty physical examination, was not new to the claimant, and the Board is satisfied that the Carrier exercised due diligence
PLB No. 6461 C-1 I/A-I I fage 3 when it clearly and repeatedly informed the claimant what was expected from him prior to his return to service. We found no evidence in the record of any "extenuating circumstances beyond his control", thus, one can only speculate as to why he failed to comply with the Carrier's instructions. Therefore, we find the claimant failed to comply with the provisions of Rule 4, and he must bear the consequences of his actions.

AWARD: The claim is denied

Franc' . Dorm
Ne Member

Marilyn 1. Kovac.R
Carrier Member

Perry K. teller, Sr
Organization Member

Dated: Y - l h - 03