Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 44085 Docket No. SG-45519

20-3-NRAB-00003-190332

The Third Division consisted of the regular members and in addition Referee Paul S. Betts when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Union Pacific Railroad Company STATEMENT OF CLAIM:

“Claim on behalf of E.D. Koci, for return to service with compensation

for all lost time, including overtime, and with benefits unimpaired from December 2, 2017, continuing until he is returned to service, account Carrier violated the current Signalmen’s Agreement, particularly Rules 5, 10, and 65, when it improperly withheld the Claimant from service after his physician released him to return to work without restrictions on October 5, 2018.”

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.

In the instant dispute, the Organization alleges the Carrier violated the Agreement when it withheld the Claimant from service after he had been cleared to return to work by his personal physicians.

The Claimant was hired in January 2011. The record indicates that beginning in July 2016, the Claimant had serious health conditions requiring several medical procedures, and prolonged hospitalization and rehabilitation. Due to the complexity of the Claimant’s medical issues, the Claimant had multiple physicians overseeing his health conditions. On various days during the six-month period beginning in May 2017 and continuing through October 2017, the Claimant’s physicians released the Claimant to return to work with no restrictions. The Carrier reviewed the medical documentation provided by the Claimant’s physicians and determined that the Claimant had a high risk of seizure. As a result, the Carrier issued the Claimant the following permanent restrictions which could not be accommodated by his supervision:

“ • Operation of company vehicles/on-track or mobile equipment/forklifts – Prohibited

• Operation of cranes, hoists, or machinery – Prohibited

• Work on or near moving trains, freight cars or locomotives – Prohibited

• Work requiring critical decision making – Prohibited

• Work without required medical equipment – Prohibited

• Work at unprotected heights over 4 feet above the work surface – Prohibited

• Work on 1-man or 2-man gangs – Prohibited”

The Claimant was verbally notified of the permanent restrictions on December 28, 2017, with written notification sent to the Claimant on January 3, 2018. The Organization requested the Claimant be returned to service based upon the release documents provided by the Claimant’s personal physicians. By letter dated January 9, 2018, the Organization also requested a medical re-examination under Rule 52.

The matter progressed in the normal fashion and is now before the Board for final resolution.

In summary, the Organization argues the Claimant was released to return to work with no restrictions by multiple physicians, yet the Carrier chose to ignore the multiple releases, and instead placed permanent restrictions on the Claimant which could not be accommodated, resulting in the loss of work opportunity for the Claimant.

In summary, the Carrier argues a) the Organization failed to prove any violation of Rule 5 or Rule 10. The Claimant is not guaranteed forty hours of pay each week nor overtime if he cannot render service. The Claimant was not fit to perform his former

duties and was therefore not entitled to any Rule 5 payment or Rule 10 overtime, b) the Organization failed to prove any violation of Rule 65, c) the Organization failed to prove any violation of Rule 52, d) the Carrier has the right to set reasonable workplace restrictions, e) the Organization has failed to satisfy its burden that the Carrier violated the Agreement, and f) the Organization’s remedy demand is unsupported by the facts of record.

As the Board has said on many occasions, the Carrier has the right and responsibility to set proper and reasonable medical standards for its workforce. It is not the function of the Board to substitute its judgment for that of the Carrier’s regarding medical determinations or the medical standards upon which it bases its decisions. However, the Carrier must have a rational basis for its determination and must make such determinations based upon a reasonable standard.

After a thorough review of the record, the Board finds the permanent medical restrictions issued to the Claimant to be reasonable and not arbitrary. The record of medical documentation here is extensive and indicated significant and serious health events experienced by the Claimant. The permanent restrictions placed on the Claimant were based upon a review of these significant and serious health events in line with the Carrier’s safety concerns regarding the Claimant’s high risk of seizures.

As noted above, the Organization requested a Rule 52 medical re-examination.

In relevant part, Rule 52 states the following: “RULE 52 – PHYSICAL EXAMINATIONS

1. Physical Disqualification

   
   

   An employee subject to the Agreement between the parties hereto who is disqualified as a result of an examination conducted under the Carrier’s rules governing physical or mental examinations will be notified in writing, with copy to his General Chairman of his disqualification and will be carried on leave of absence.

   
   

2. Requesting Re-Examination

If the employee feels his condition does not justify removal from the service or restriction of his rights to service, he may request reexamination. Such request must be submitted by him or his representative within thirty (30)

days following notice of the disqualification, unless extended by mutual agreement between the

General Chairman and Labor Relations. He may be given further examination as follows:

1. The employee will be re-examined by a physician designated by the Carrier and a physician of the employee’s choice who will both be graduates of a Class (A) medical school of regular medicine. If the two physicians agree that the man is disqualified, their decision is final; if they agree the man is qualified, he will be returned to service…”

Under Rule 52, the record is void any information as to the Claimant’s designated physician. On January 9, 2018, the Organization requested a Rule 52 re-examination based upon the Carrier imposed restrictions. On January 22, 2018, the Carrier’s Health and Medical Services department sent a letter to the Claimant requesting contact information for his designated physician under Rule 52. The record is void a response by the Claimant identifying his designated physician and there is nothing in the record indicating medical notes were received by the Carrier from the Claimant’s designated physician.

Given the facts indicated above, the Board finds the Carrier’s action and medical determination here to be reasonable and not arbitrary. As a result, the claim must be denied.

Although the Board may not have repeated every item of documentary evidence, nor all the arguments presented, we have considered all the relevant evidence and arguments presented in rendering this Award.

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 11th day of August 2020.