The Carrier unjustly removed Mr. Thomas L. Charlton's seniority from the roster and denied his right to exercise his seniority in accordance with Rules 13 and 14 of the applicable Agreement.
As a consequence of the violation refened to in Part I above, the Claimant shall have his seniority restored unimpaired beginning in 2002, through and including on a continuous basis and to be paid his Foreman's rate of pay at his respective straight time rate of pay beginning February 7, 2012.
Facts:
The Claimant, assigned as a Track Foreman in 2000, obtained a MLOA in May 2000. The MLOA expired on September 13, 2000. The Claimant allegedly did not provide additional medical documentation after the expiration of his MLOA, which, therefore, according to the Can-ier, ended on September 13, 2000. He did not exercise his seniority within 20 days as was his right under Rule 13 Leave of Absence or Absence on Account of Sickness. This resu1ted in a furlough. By the time the Claimant attempted to return to service in 2012, having been furloughed for over three years, his seniority had been removed from the roster by the Carrier allegedly in accordance with Rule 2 Seniority Rights.
Carrier Position:
The denial of the claim was timely, having been placed in the mail on the 56th day after receipt of the claim on May 29, 2012. The Organization's receipt of the denial on June 12, 2012 was beyond the Carrier's control. The Claimant was not on a MLOA between September 13, 2000 and 2012 bcause he had not submitted updated medical
AWARD 15
documentation that would have supported an extended MLOA beyond September 13, 2000, despite being told to do so in 2005, 2008 and 2009. The summary provided by the Carrier's HMSD indicated that the Claimant had worked as a police officer between 2000-2008 and that he had gone skiing in 2004, with these activities inconsistent with a contention that he was physically unable to perform service. Failure to exercise seniority once his MLOA expired on September 13, 2000 meant that the Claimant self-furloughed. After three years of self-furlough, by rule the claimant's seniority rights were 1·emoved. Prior awards support the enforcement of self-executing Rules, which is what happened in this case when the Claimant seJt forloughed for over ten (l 0) years.
01·ganizatio11 Position:
The claim must be atlowed in accordance with Rule 23 because the Carrier failed to deny the claim within 60 days of receipt. The claim was dated April 3, 2012 and the denial was received on June 12, 2012, with June 2, 2012 marking the end of the 60-day deadline. There is ample precedent, including on-property cases, for sustaining the claim because of the time limits violation. Furthermore, the Carrier's termination of the Claimant's seniority violated the CBA because the Claimant had complied with Rules 13 and 14 in his notification to exercise his seniority. Claimant had not self-furloughed, but was on a MLOA from 2002 thrnugh February 7, 2012 when he was released to active service without restrictions. Medical documentation suppo11s the Claimant's contentions and shows that the Carrier had knowledge of his medical condition. Claimant's continued contact with the Carrier's Health and Medical Department means that he had not self-fmloughed and had retained his seniority.
Findings:
The first concern of the Board is whether the Carrier met the requirement embodied in Rule 23(a) that it "will, within sixty (60) days from the date it is filed notify whoever filed the claim or grievance (the employee or his representative) in writing of the reasons for such disallowance. . ." Prior awards have not led to consensus on the meaning of the word "notify." PLB 6459, Award No. 19, states that "The Rule does not make the Carrier an insurer of receipt of the notice nor can it be read to mean that the decision is not 'rendered' until it is received." A differing interpretation was applied in NRAB Third Division Award No. 28734, in which the denial of a claim was postmarked on the 60th day after receipt and received thereafter. The act of posting the letter was not equated with notification to the Organization.
There is no dispute that in the case before this Board, the denia) of the Organization's claim was mailed on the 56th day after Carrier receipt of the claim, but was received after the 60t11 day. The Board believes that the better approach to Rule 23(a) is to define "notify" to require posting of the denial letter within 60 days of receipt of the claim. The Board also notes that in situations where the posting date is in dispute, the Carrier has the burden of showing compliance with Rule 23(a).
AWARD 15
The Claimant began his MLOA in May 2000 with the MLOA having an. expiration date of September 13, 2000. There is nothing in either submission showing that whert th¢ MLOA expit'ed. the Claimant provided documentation supporting a request for an extension of the MLOA in accordance with Rule 23e. Nor did the Claimant. attempt to exercise his seniority rights within 20.calendar days of a retwn to. set-vice, as there was no return to service; Indeed,. the Claimant neither returned to service. nor submitted. documentation to support an addidona[MLQA, although he was urged to do so in 200$, 2008 and 2QQ. In fact, the Board observes from documents in the record that the Claimant worked as a police officer during some of the pedod he was out of service and that he took a skiing vacatfoactivities inconsistent with hls contention that he was unable to return to service. When the. Claimant did not return to service within three years after the expiration of the MLOA $Id did not seek an extension, he self-furloughed in accordance with Rule 23. Any contact that the Claimant had with the Carrier's Health and Medical Department did not, because of an absence of a specific request to et<md his
MLOA, negate the fact that he had self-furloughed, By the time the Claimant moved to
exercise his seniority rights in 20121 he had self-furloughed for well over three years and his seniol'lty rights had long since expired. The Carrier was well within its contractual rights to denythe claim.
Award:
Claim denied.
Order:
The Board, after consideration of the dispute identified above, orders that no
award favorable to the Claimant be entered.. ·
#'V i1-/J1
Andrew Mulford, Organization Member Katherine N. Novak, Carriei·Member
B. Helburn, Neutral Referee