Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33627
Docket No. MW-33954
99-3-97-3-382
The Third Division consisted of the regular members and in addition Referee
Martin H. Malin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri Pacific
( Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly withheld
Mr. G. L. Weems from service on February 1, through March 13,
1996 (Carrier's File 960392 MPR).
(2) As a consequence of the aforesaid violation, the Claimant shall be
compensated for all wage loss suffered including overtime and
holiday pay."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Form 1
Page 2
Award No. 33627
Docket No. MW-33954
99-3-97-3-382
On January 31,1996, the Carrier's Engineering Supervisor notified the Claimant
"r
that
if
had come to his attention that the Claimant "may be experiencing some health
problems based on recent observations
of
your work performance." The Claimant was
withheld from service, effective February 1, 1997, and directed to contact the Carrier's
Employee Assistance Hotline. The Claimant was evaluated on February 8, 1996,
scheduled for a fitness for duty examination on March 1, 1996, released to return to
work on March 8, 1996, and returned to service on March 13, 1996.
The Organization contends that the Carrier improperly disciplined the Claimant
by withholding him from service without a fair hearing. It argues that the Carrier had
no proper basis for withholding the Claimant from service and that, even
if
the Carrier
had a valid reason to withhold the Claimant from service, it failed to resolve questions
concerning the Claimant's medical condition with reasonable dispatch.
It is clear that the Claimant's being withheld from service was not disciplinary
in nature. It was based on observations
of
the Claimant's behavior which led the
Carrier to question the Claimant's fitness for duty. The Carrier has the right to
withhold an employee from service where it has a reasonable basis for concern with the
employee's medical fitness.
During handling on the property, the Carrier explained that the Claimant
"exhibited jittery behavior; was jumpy; appearing that he was going to lose control and
had a definite lack
of
concentration." The Carrier's explanation was not denied.
Accordingly, we conclude that the Carrier had a reasonable basis for withholding the
Claimant from service.
The little more than one month that the Claimant was withheld from service is not
per se an excessive period
of
time. Although the Organization asserts that the Carrier
should have resolved the Claimant's status more quickly, the record developed on the
property is devoid
of
evidence
of
the results
of
the medical evaluations and
of
what
occurred during the period that the Claimant was withheld from service. The record,
however, does reflect that the Carrier twice advised the Organization that it required
the Claimant's consent to the release
of
his medical records. The Claimant did not
provide such a release. Thus, the absence
of
documentation in the record
of
what
transpired medically while the Claimant was withheld from service appears to be the
Claimant's responsibility. Under these circumstances, the claim must be denied.
Form 1
Page 3
Award No. 33627
Docket No. MW-33954
99-3-97-3-382
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.
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