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.
On April 21, 1998, the Claimant, who had been working as a Laborer at Louisville, Kentucky, took a voluntary leave of absence for medical reasons. On June 9, 1998, the Carrier received a faxed copy of a May 22,1998 letter from Psychiatrist D. Garst, which stated:
Assistant Division Engineer Ellis contacted the Claimant to explain the Medical Department's requirements for a proper work release. Ellis advised the Claimant th-it he would be on a "medical hold" until such records were received and reviewed by c ! e Carrier's Medical Department. On June 10,1998, the day after their conversation, Ellis sent the Claimant a certified letter in which he detailed their discussion and reiterated the Medical Department's requirements for work release.
On July 2, 1998, the Organization submitted a claim on behalf of the Claimant "for all pay beginning June 17,1998, and continuing," alleging that the Carrier did not promptly set up a return-to-work physical for the Claimant. The Organization further asserted that the May 22,1998 letter from Dr. Garst met the requirements of a proper "doctor's release."
Thereafter, during an August 25,1998 telephone conversation, Assistant Medical Director P. Lina again explained the requirement of a statement from the Claimant's doctor, including medical records, so that the Medical Department could determine if the Claimant could return to work. During that conversation, the Claimant became "very belligerent and argumentative," according to Dr. Lina, who concluded the conversation by assuring the Claimant that she would send him a second letter Form 1 Award No. 36330
explaining the Medical Department requirements for records and a work release. That letter, dated August 25, 1998 was sent to the Claimant, via certified mail.
On November 6, 1998, the Carrier sent the Claimant another certified letter restating the original requirements for medical records and a work release, and further informed the Claimant that he had ten days within receipt of the letter to comply with the instructions, or face possible disciplinary action. On November 12, 1998, the Claimant's personal physician faxed a copy of a letter from Psychiatrist Garst which stated that he had seen the Claimant, but because he was not "fully compliant with the treatment plan," Dr. Garst was no longer able to care for him. The Psychiatrist also informed the Carrier that he had tentatively diagnosed the Claimant with "a bipolar disorder with substance abuse."
Thereafter, on December 30,1998, the Carrier's Medical Department advised the Claimant that he was scheduled for an independent medical evaluation with Dr. T. Eells, a psychologist. The results of the January 4, 1999 evaluation, which were sent to the Carrier's Medical Department, indicated that the Claimant suffered from "alcohol abuse, as well as a personality disorder which could complicate Mr. Lanham's adjustment to work settings."
As a result of Dr. Eells' evaluation, the Claimant was informed that he remained on Medical Hold pending further evaluation and/or treatment of his medical and/or emotional problems. The Carrier further informed the Claimant that, as required by Norfolk Southern's Policy on Alcohol and Drugs, he was to meet with a Drug and Alcohol Services (DARS) counselor. By letter dated January 29,1999, the Organization protested the Claimant's required participation in DARS. However, after receiving a February 4,1999 letter from the Carrier's Medical Director Dr. D. Prible, and a March 5, 1999 response from Director Labor Relations Piserchia, each of which explained the reasons for a DARS evaluation, the Organization did not progress this grievance any further.
On February 9, the Claimant met with the DARS counselor, but refused to be evaluated or to participate in the program. In the meantime, the claim initiated by the Organization, after subsequent appeals, was discussed in conference on September 7, 2000. In a follow-up letter dated September 14, the Carrier confirmed that the Claimant would remain on medical hold pending his compliance with the Medical Department's instructions as contained in Dr. Prible's August 1999 letter. With this understanding, the time limit to submit a claim for lost wages to arbitration was also extended to November 20, 2000.
Although the Organization declined to progress the claim, the Claimant submitted "an unadjusted dispute" to the Board by Notice of Intent dated November 12, 2000. In doing so, the Claimant failed to progress the matter in the usual and customary manner on the property, as prescribed by the mandatory requirements of Section 2, Second and Form 1 Award No. 36330