Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42430 Docket No. MW-41942 16-3-NRAB-00003-120249

The Third Division consisted of the regular members and in addition Referee George E. Larney when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company (former Chicago ( and North Western Transportation Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it improperly removed and withheld Mr. A. Giammona from service on March 11, 2011 and continuing until March 30, 2011 (System File B-1156C101/1552810 CNW).

(2) As a consequence of the violation referred to in Part (1) above, Claimant A. Giammona shall now '. . . be compensated for ninety five (95) hours straight time, fifty and one-half (50.5) hours of over-time, and seven (7) hours of double-time at the applicable Assistant Foreman rate of 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.

For several weeks prior to March 11, 2011, Claimant, an Assistant Foreman Truck Driver on Gang 4091 complained to fellow employees of not feeling well, specifically feeling nauseous and dizzy and contending, as a result, he was unable to safely perform his required duties. According to the record evidence Claimant also expressed his concern about his physical condition to a Supervisor Bucklin. Claimant's supervisor, Thomas Campbell sometime thereafter became aware of his complaints and concerned he was unable to safely perform his assigned duties.

On March 11, 2011, while Claimant and his Gang 4091 was working on a bridge at an extreme height, Supervisor Campbell took Claimant out of service upon his decision that Claimant should undergo a medical evaluation to determine if he had some medical condition Claimant was unaware of. Campbell's decision to refer Claimant for a medical evaluation was in accord with Section 2.5b of Carrier's Medical Rules, revised March 1, 1997 and Carrier's Fitness-for-Duty Evaluations policy. Section 2.5b reads in pertinent part as follows:

"If a Supervisor . . . becomes aware of an Employee's . . . medical condition which might be associated with an Employee's physical . . . impairment, the Supervisor should immediately . . . refer the Employee for a Fitness-for-Duty Evaluation. When the Supervisor requests a Fitness-for-Duty Evaluation the Supervisor may . . . temporarily withhold the Employee from active service . . . during the evaluation period. * * *"

Carrier's Fitness-for-Duty Evaluations policy states in pertinent part the following:

"Union Pacific maintains the final authority for determining whether an employee if fit for duty. To determine Fitness-for-Duty, employees may be asked to participate in medical tests and evaluations.

• * *

Supervisor's have the ability to request a Fitness-for-Duty evaluation based on credible information which raises a concern about the employee's ability to safely perform his/her job duties. The Supervisor may remove the employee from service during the review period."

By letter dated March 16, 2011, Carrier informed Claimant he had been temporarily removed from service effective March 11, 2011 pending the medical review results. By letter dated March 18, 2011, Carrier directed Claimant to attend and cooperate in a medical examination scheduled for March 21, 2011 at 2:00 p.m. Carrier apprised that as soon as the Health and Medical Department completed its evaluation and makes a determination about your ability to safely perform your job duties, you will be advised of the results. By letter dated March 28, 2011, Carrier informed Claimant that the Health and Medical Services Department found no further reason for continued disability and therefore he was being returned to work without any work restrictions. Claimant returned to service of the Carrier on March 30, 2011.

The Organization filed the subject claim on grounds Carrier had removed Claimant from service without justification and therefore improperly asserting that Carrier was aware Claimant had been working with a chronic condition for years and that his condition in no way limited his ability to perform his job. The Organization disputes Carrier's position that Claimant made multiple statements to his coworkers he was afraid to stay at work for fear of suffering an injury as Carrier failed to identify any of Claimant's coworkers he made such statements to. The Organization further asserts that no supervisor heard Claimant make any such statements either and notes there are no first-hand statements in the record of Claimant making any such statements.

The Claimant's medical evaluation had determined that at the time Claimant had been taken out of service, he had a simple case of the flu. The Organization contends that such a case of the flu was insufficient to justify withholding Claimant from service for 20 days. Moreover, the Organization asserts the Board has held that five days is sufficient time for the Carrier to process a Claimant's return to work. Here, Claimant submitted to the medical examination on March 21 yet Claimant was not notified by Carrier he was cleared to return to work until seven days later and then another two days elapsed before Claimant actually returned to work.

Carrier argues that once Claimant of his own volition raised concerns regarding his ability to safely perform his normal duties, failure on its part to take action, here taking Claimant out of service, had the potential to result in injury or harm not only to Claimant but other of his coworkers as well. Thus, Carrier contends not taking action was not an option and therefore it was justified in properly removing Claimant from service pending a medical evaluation. Carrier notes that until the medical evaluation was completed, Claimant by his own actions indicated he was unable to perform his duties safely. Carrier submits it was the Organization that clearly failed to meet its burden of proof by a preponderance of the evidence to show that it was its action and not the Claimant's that caused him to be taken out of service pending his undergoing a medical evaluation. Carrier emphasizes the point that Claimant was pulled from service pending a medical examination due to his own concerns regarding his ability to perform the required work.

It is an obvious, important, and very serious obligation on the part of any carrier and its management to ensure the safety of each and every employee in their workforce. Carrier here was absolutely correct in taking the action it took to take Claimant out of service pending a medical evaluation to determine his fitness for duty not only for his safety and protection but for the safety and protection of all those working alongside of Claimant. As far as the Organization's eluding to a chronic medical condition suffered by Claimant and the fact Carrier has knowledge of such condition, we are completely at a loss regarding such a circumstance as there is nothing in the record evidence before us that even hints of such a situation. The bottom line here is when all argument and evidence is taken into consideration this instant claim is deemed by us to be completely without merit in every respect. Accordingly, we rule to deny the subject claim in its entirety.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 31st day of October 2016.