PUBLIC LAW BOARD 7702 CASE NO. 5
BNSF RAILWAY COMPANY
CARRIER CASE NO. 10-11-0338
V.
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION I IBT
ORGANIZATION CASE NO. C-l l-A040-21
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
The discipline (seniority termination) imposed upon Mr. A. Olivetti by letter dated March 17, 2011 was arbitrary, capricious and in violation of the Agreement (System File C- 11-A040-21/10-11-0338 BNR).
4 As a consequence of the violation referred to in Part (1) above, beginning March 17, 2011, Claimant A. Olivettei shall '... be pa id for all lost straight time hours and overtime hours at the time and one-half rate of pa y, he be mad e whole for any lost vacation, incentive earnings, and medical bills due to loss of insurance coverage, as settlement of this claim.
FINDINGS:
The carrier and the employee or employees involved in this dispute are respectively the carrier and the employee or employees within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7702 has jurisdiction over the parties and the dispute involved herein.
Claimant has established seniority within the Carrier's Maintenance of Way Department with a seniority date of over seventeen (17) years prior to the date giving rise to Claimant's dispute.
On the date giving rise to the dispute, Claimant was in furlough status being subject to recall.
On February 23, 2011, Claimant was sent a recall letter, also dated February 23, 201 L The recall letter instructed Claimant to report to Group % Machine Operator position
#44008 located at Casper, Wyoming, within 10 calendar days of notification. This letter was sent via certified mail.
The United States Postal Service ("USPS") attempted to deliver this letter on Saturday, February 26, 2011 9:26 a.m., which started the 10-day count down. To comply with Rule 9 and to protect his seniority, Claimant had to report for duty no later than March 7, 2011.
Claimant did not take receipt of this letter on Saturday, February 26th and the USPS left a notice of attempted delivery. Claimant retrieve d his certified letter from the USPS on Tuesday, March 1, 2011 at 4:45 p.m. Claimant contacted the Engineering Support Department on March 2, 2011 at 10:37:34 a.m. to obtain the phone numbers for the Road master and the Foreman in charge of the Casper Wyoming position. The
planner provided the Road master's phone number and advised there was not a Foreman. It is evident that Claimant was aware of his obligations under the rules. He inquired to requesting a 19A (relief assignment) on another job but was informed he had to report for duty and work before he could be used on a 19A relief assignment.
Claimant called back at 11:32:51 a.m. inquiring about other job opportunities and expressed his displeasure about having to report to Wyoming, at which time the planner gave him until March 1oth to report for duty.
Claimant chose not to report for duty on March 1oth and per the self- executing provision of Rule 9 he lost all of his seniority rights. Claimant 's seniority date and name were removed from the roster on March 17, 2011.
Carrier Argument:
The evidence is overwhelming that Claimant failed to report for duty within 10 days of rec all in accordance with Rule 9. Rule 9 is a self-executing rule, a fact upheld by overwhelming arbitral authority, and when Claimant failed to report for duty on March
10th, he effectively terminated his employment with BNSF.
It is evident that Claimant did not want to work in Wyoming based on his call of March 9, 2011 at 13:55:01, when he was inquiring ab out work opportunities to the East in the
L,,L - J LLL area. It is Claimant to work in Lincoln area and he
was trying to sharp shoot the rules in an effort to avoid having to report to Wyoming. The relevant provisions in Rule 9 are as follows:
[F]ailure to return to service within ten (10) calendar days, unless prevented by sickness or unless satisfactory reason is given for not doing so, will result inlossofall seniority rights.
Note: 1. Employes called back in service in accordance with provisions of Rule 9 must report at starting time of shift to which called within ten (10) calendar days.
Rule 9 of the Agreement has been arbitrated many times over the years, and arbitrators agree that it is a "self-executing" provision-meaning that it automatically is triggered by the employee's inaction, without need for any action on Company 's part. Such provisions are stringently enforced, and leniency is not entertained.
Organization Argument:
Organization's argument is twofold: First, that Claimant's 10 day recall date should not have started until he actually picked up his mail on March 1st thus creating a new reporting date of March 11th. Second, the position the Claimant was supposed to report to was being abolished by the Carrier at the end of the daylight shift on March 1oth.
After reviewing the entire record it is apparent that the precedence has been set by numerous arbitration cases where in accordance with Rule 9 time is of the essence in reporting for duty.
Additionally, numerous cases have determined that an employee cannot delay their reporting date by simply delaying the acceptance of their mail.
Here, the record is not clear as to whether the Claimant, in deed, could have retrieve his mail any sooner or not.
What is clear from the record is for whatever reason, the Claimant did not report for duty within the regular timeline of March 7th or the extended timeline, given by the Carrier, of March 1oth, the Claimant's determination to work elsewhere within the Carrier, other than Casper Wyoming, ended up being his disqualifier based on Rule 9.
The Claimant was directed to report to duty in Casper Wyoming at the start of the shift on March
10
10
h.
h.
1 It is immaterial that particular job was being abolished at the end of the shift. What is
important, however, is the Claimant failed to report as required.
AWARD:
The Claim is hereby denied.
Marc A. Winters Neutral Member
Dated: November 27, 2015
Kevin Evanski Organization Member