Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43156 Docket No. SG-43459 18-3-NRAB-00003-160125

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Union Pacific Railroad Company

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Union Pacific Railroad:

Claim on behalf of N.K. Mount, for reinstatement to his former position with payment for all time lost, including overtime, beginning on September 1, 2014, and continuing until this dispute is resolved, account Carrier violated the current Signalmen's Agreement, particularly Rule 52, when it placed numerous unwarranted medical restrictions on the Claimant and medically disqualified him from service, and then failed to schedule him for a fit for duty reexamination upon refusing to accept his physician's determination that he was fit for duty. Carrier's File No. 1615708. General Chairman's File No. S-52-1402. BRS File Case No. 15305-UP."

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.

The Organization filed the instant claim on the Claimant's behalf, alleging that the Carrier violated the parties' Agreement when it medically disqualified the Claimant from service on September 1, 2014, based on unwarranted medical restrictions, and then failed to schedule the Claimant for a fit-for-duty examination after refusing to accept the determination of Claimant's physician that he was for duty. The Carrier denied the claim.

The Organization contends that the instant claim should be sustained in its entirety because the Carrier improperly withheld the Claimant from duty after the Claimant's cardiac physician found that he was fit to return to duty without restrictions, because there is no support for the Carrier's assertion that EMF from signal equipment exceeds the manufacturer's limit for the Claimant's pacemaker, and because the Carrier failed to schedule the Claimant for an examination by a third-party physician after the Claimant timely requested a re-examination.

The Carrier contends that the instant claim should be denied in its entirety because the re-examination provision of Rule 52 was not triggered in this case, because the Carrier has the managerial right to set reasonably workplace medical restrictions, because restrictions were assessed in this matter because of elevated EMF exposure, because the Claimant is at risk for sudden incapacitation due to the impact of EMF exposure on his ICD device, because the Organization has failed to meet its burden of proof, and because there is no support for the requested remedy.

The parties being unable to resolve their dispute, this matter came before the Board.

The Board has reviewed the record in this case, and we find that the Organization has failed to meet its burden of proof that the Carrier violated the Agreement when it medically disqualified the Claimant from service and then failed to schedule him for a duty re-examination upon refusing to accept his physician's determination that he was fit for duty. Therefore, this claim must be denied.

The Claimant suffered from a medical condition whereby he had an implanted cardiac pacemaker device in his body. The Claimant worked in an area where there were elevated EMF exposure levels that far exceeded the maximum allowable amounts identified by the manufacturers of the implanted heart defibrillator. The Carrier contacted the manufacturer's representative, and he was not familiar with the EMF tolerance recommendations but, more importantly, could not provide any scientific literature to document that it was safe to work in the environment in which the Claimant was required to perform his tasks. Although the Claimant's doctor stated that, from a cardiac point of view, the Claimant was able to work without restrictions, the Carrier was following the pacemaker's manufacturer's recommendations, which indicated that the Claimant would be at risk. The Carrier determined that it would be unsafe to permit the Claimant to work in the environment.

It is fundamental that the Carrier has the right to set reasonable workplace restrictions. A review of the record makes it clear that the Carrier did not abuse that right when it forbid the Claimant from working in his current situation. A Dr. Holland determined that there was scientific medical literature that stated that individuals who have ICDs, like the Claimant, have a "permanent significantly increased risk for sudden cardiac arrest (and sudden incapacitation)" and further that "such risks are likely to increase with time given the progressive nature of cardiovascular disease."

There is evidence in this record that the Carrier's Disability Prevention and Management Team attempted to work with the Claimant to explore other job possibilities within the Carrier. The Claimant went on an RRB disability annuity. The Claimant was found by the RRB that he was not able to work.

The Organization has simply failed to meet its burden of proof in this case and, therefore, this claim must be denied.

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 30th day of May 2018.