NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MS-26145
George S. Roukis, Referee
(Richard E. Hanson
PARTIES TO DISPUTE:
(Burlington Northern Railroad
STATEMENT OF CLAIM:
"The Burlington Northern violated Rules 40a, 40g, 41a, 41e,
45a, 69a, and in fact the entire scope of our Collective Bargaining Agreement
by discriminating against and arbitrarily withholding me from service for no
apparent reason except spite and vindictiveness."
OPINION OF BOARD: The basic facts in this case are set forth as follows: On
April 16, 1984, Claimant apprised the Division Superintendent that he had been released for duty
furnished by his orthopedic physician. Claimant had suffered a back injury
sustained when he was unloading ties from a rail tie car on February 7, 1983.
The note supplied by his physician stated that Claimant was able to return to
work as of 4/10/84, but indicated under the term "limitations", "take care
with any lifting". Since Carrier perceived this comment as an implicit
continuation of the limitation previously noted on a prior release note by the
same orthopedic physician, it advised Claimant that it could not approve his
return to service. Specifically, the Acting Chief Medical Officer informed
Claimant in a letter, dated April 30, 1984, that:
"I have a different understanding of
operating procedures in the Maintenance of
Way Department throughout the railroad and
in your area. My impression is that
machine operators must be available to
perform other routine maintenance of way
work of any sort which is of a useful and
productive nature for the supervisor if
they are not needed at the time to work
their machine. My impression is that all
such machine operators must be qualified
and physically able to safely perform
regular maintenance of way work. This is
precisely the type of activity that your
back does not seem to be able to handle and
which has resulted in repeated and
prolonged problems which we are trying to
prevent. I do not recommend the return to
this form of labor and feel you should
continue to pursue alternative vocational
plans."
Award Number 26027 Page 2
Docket Number MS-26145
On June 4, 1984, Claimant notified Carrier that he would displace a junior
employe on a machine, but he was precluded from exercising his seniority to
this position because he had not obtained an unrestricted release from his
physician. He filed the instant Claim on June 12, 1984. In the subsequent
period, as the Claim progressed, his physician again wrote a medical note,
dated September 10, 1984, which stated: "May return to full duty (as of April
16) as machine operator", but this note was unacceptable to Carrier. His
physician submitted another note, dated October 15, 1984, wherein Claimant was
cleared for "full duty, no restrictions", and no limitations were cited.
Claimant was restored to service on November 1, 1984.
In defense of his petition, Claimant contends that he was given a
full release to return to work on April 16, 1984, and was improperly denied
his employment rights. He also asserts that Carrier violated his rights under
Agreement Rule 41A when it did not accede to his request to establish a
Medical Board.
Carrier avers that its actions fully comported with the Collective
Agreement since Claimant had never submitted a physician's note unconditionally releasing him for fu
observes that even on August 3, 1984, when the Claim was conferenced at the
highest designated officer level, Claimant acknowledged that he still had two
herniated disks in his spine. It also maintains that the Claim is procedurally defective since it wa
when he was first refused return to service on a restricted basis.
In our review of this case, we concur with Carrier's position.
While Claimant's physician fully cleared him for service October 15, 1984,
this explicit non-limited clearance is distinguishable from the hedged
clearance given on April 16, 1984. Under the designation, "limitations",
Claimant's doctor wrote, "take care with any lifting", which under the
circumstances of Claimant's injury was not perfunctory advice. On June 6,
1983, the same doctor wrote, "return to regular duty - take care with bending
forward", which was unacceptable to Carrier. Previous to this note, Claimant
was advised by the Division Superintendent that upon full release by his
physician he could arrange to return to his assignment. Within the context of
the May 19, 1983, letter and Carrier's consistent position that an unconditional release was an abso
actions following Claimant's April 16, 1984, employment request were not
unreasonable. It would have been easy for his physician to unequivocally
state "no limitations". In effect, rather than engage in subtle word play,
Claimant should have forthrightly obtained an unqualified release from his
physician in April, 1984. Upon the record, we find no plausible logical basis
for concluding the Collective Agreement was violated, and accordingly, the
Claim is denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
Award Number 26027 Page 3
Docket Number MS-26145
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor Act
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attes
Nancy Vier - Executive Secretary
Dated at Chicago, Illinois, this 28th day of May 1986.