Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10816
SECOND DIVISION Docket No. 9771
2-BN-CM-'86
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc., formerly St. Louis-San
Francisco Railway Company, vioated (sic) the provisions of the current
controlling agreement when they wrongfully and unjustly withheld Lead Car
Inspector L. E. Wilson from service beginning August 4, 1980 up to and
including November 13, 1980.
2. That accordingly, the Burlington Northern, Inc. be ordered to
reimburse Lead Car Inspector L. E. Wilson for all time lost at eight (8) hours
pay at the Lead Carman's rate of pay for each day of his regular assignment,
commencing August 4, 1980 through November 13, 1980, at the straight time rate,
3. That he be reimbursed for each minute of overtime worked by
employe or employes filling Mr. Wilson's assignment during the period withheld
from service, at the time and one-half rate.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The essential events in this dispute began on July 31, 1980, when the
Claimant's physician released him to return to work following a period of
absence caused by physical problems. On August 4, 1980, the Carrier's Medical
Consultant recommended that the Claimant not return to work until he no longer
required certain medication. The Claimant's physician recommended on August
11, 1980 that the Claimant be on leave of absence for another 60 days. The
Carrier granted this request, and on September 25, 1980, the Claimant's
physician recommended a 30-day extension, which was also granted by the
Carrier. On October 27, the Claimant's physician stated that the Claimant was
no longer taking medication and appeared to be ready to resume his employment.
Three days later, the Claimant's physician furnished the necessary form to the
Form 1 Award No. 10816
Page 2 Docket No. 9771
2-BN-CM-'86
Carrier, indicating that the Claimant could return to work on October 30,
1980. The Carrier's medical consultant again examined the Claimant on '
November 6, 1980 and approved his return to duty. The Claimant actually
resumed work on November 14, 1980.
It is well established in this industry that the Carrier has the
right to establish and to enforce medical standards for its employees. Here,
we have a case in which the Carrier's Medical Officer determined that the
employee could not return to work while taking certain medication. From this
record, we do not find that this was an unreasonable determination. This
conclusion also is sustainable because the Claimant's physician requested the
extended leaves of absence as above.
The only remaining issue to be decided is whether the period of time,
beginning when the Claimant's physician notified the Carrier on October 27
(Monday) and ending when he returned to work on November 14, 1980 (Friday),
was unduly delayed. The Carrier required the Claimant's physician to complete
its "Physician's Release to Resume Work" form. This was completed on October
30, 1980, and the physician noted that the Claimant was medically fit to
resume work on that same day (October 30). Carrier's requirement, in this
regard, is not an abuse of discretion under the circumstances prevalent
herein. However, at that point in time, it was up to the Carrier to respond
promptly, either by accepting the Claimant's report at face value and
returning him to work, or, as it did here, by scheduling its own examination,
conducted on November 6, 1980. It then issued a statement on that date to the
effect that the Claimant could return to work.
Numerous Awards have established that five days is a reasonable
amount of time to conduct an examination after a request for such is received.
Here, the Carrier was effectively notified on October 27 that the Claimant was
ready to return to work. However, it did not complete its examination until
November 6, and did not return the Claimant to work until November 14. The
reason for the cumulative delay is not explained in the record and, given the
physical proximity of the principals controlling the events here, this delay
cannot be said to be reasonable since it deprived the employee of his right to
an earning opportunity. We conclude on a constructed basis that the Claimant
should have been returned to work on November 5, and that he should be paid at
the straight time rate beginning with that date, through the day before the
day when he actually resumed work activity (i.e., November 13, 1980).
A WAR D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 16th day of April 1986.