Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44863 Docket No. SG-46717
23-3-NRAB-00003-210715
The Third Division consisted of the regular members and in addition Referee Michael D. Phillips when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Canadian Pacific Railway STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Canadian Pacific Railway (formerly Soo Line):
Claim on behalf of B. W. Teeters, for 80 hours at his respective straight time rate of pay and should be in addition to any other compensation he received while held from service on March 24 through April 7, 2020; account Carrier violated the current Signalmen’s Agreement, particularly Rule 17, when the Claimant was instructed to quarantine because of Covid-19, Carrier failed to properly compensate the Claimant and withheld him from service, resulting in a loss of earnings to the Claimant. Carrier’s File No. 2020-00015068. General Chairman’s File No. 2020-00015068. BRS File Case No. 16606-SOO. NMB Code No. 139.”
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.
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Parties to said dispute were given due notice of hearing thereon.
On March 24, 2020, Claimant B. W. Teeters reported to his manager that he was not feeling well. After contacting the Carrier’s COVID-19 hotline, the Claimant was instructed to self-quarantine for 14 days, during which period he was not permitted to work, and he was not compensated.
The Organization initiated the instant claim on the Claimant’s behalf, contending that the Carrier had improperly prevented the Claimant from working a forty-hour work week as provided for in Rule 17 of the applicable agreement. It stated that, while the Claimant had been fit and available for work, the Carrier’s COVID-19 response team had instructed him to quarantine himself between March 24 and April 7, 2020, resulting in a wage loss of 80 hours. The claim sought pay for the time the Claimant was not allowed to work.
The Carrier denied the claim, stating that it was complying with Center for Disease Control (CDC) guidelines put in effect to address the ongoing COVID-19 pandemic. It noted that the Claimant had reported not feeling well and having symptoms related to the Coronavirus, and it added that the Claimant had been provided instructions on seeking RRB sickness benefits and insurance benefits.
The Organization submitted an appeal, stating that the Carrier was incorrect in suggesting that the Claimant had a personal ailment. It asserted that the Claimant did not elect to refrain from coming to work for 14 days, but that it was the Carrier who instructed the Claimant to quarantine himself. The Organization stated that the onus thus was on the Carrier to compensate the Claimant, as he had no choice in the matter.
The Carrier denied the appeal, again stating that it complied with CDC guidelines once the Claimant reported to the COVID-19 hotline that he was experiencing symptoms consistent with COVID-19. The Carrier averred that it had an obligation to other employees to ensure that they have a safe work environment.
The parties discussed the matter in conference, which the Carrier documented in additional correspondence. It emphasized that the parties were in the middle of a global pandemic, which was impacting multiple facets of life, and that the effects were widespread, ongoing, and tragic. The Carrier cited the CDC guidelines which explained the necessity of quarantine to help prevent the spread of disease, which included staying home, separating from others, and monitoring health. It also noted that the guidelines included advice that spread of disease can occur before a person knows they are sick or
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if they are infected with the virus without feeling symptoms. The Carrier asserted that the Claimant was properly removed from service to self-quarantine in an effort to avoid potentially spreading the virus to fellow colleagues and their families, and the community at large. The Carrier supported its argument with citations to CDC data reporting the increasing numbers of COVID-19 cases. It maintained that it would be derelict in its duties if it permitted employees exposed to COVID-19 to continue working and endangering the welfare of other employees, customers, and communities.
The parties concluded the claim handling through the on-property appeal process, but they were unable to resolve it. The matter now comes to us for resolution.
The parties’ positions are essentially the same as those described in the on- property handling. The Organization reiterates its position that the Carrier arbitrarily forced the Claimant to miss work opportunities for symptoms of COVID-19, but that the Carrier failed to initiate an appointment with a physician to determine if the Claimant was actually infected with the virus. It states that the Carrier is using the CDC guidelines as a scapegoat and an excuse for not compensating the Claimant under Rule 17. The Organization contends that the Carrier raised an affirmative defense, but that it has not substantiated it with facts that the Claimant ever came in contact with someone infected with COVID-19 or that he was infected himself.
The Organization maintains that the Carrier cannot rely on CDC guidelines to supersede agreement language. It states that, while it is understandable that the Carrier may follow those guidelines, the Carrier nevertheless bears the responsibility to compensate the Claimant pursuant to Rule 17. The Organization argues that the Claimant is entitled to all of the lost earnings he suffered by the Carrier’s arbitrary and unreasonable decision to involuntarily quarantine the Claimant.
The Organization cites prior awards which have held that the Carrier bears the burden of having reasonable grounds to force an employee on a leave of absence. It states that such authority provides that if the Carrier is wrong in its initial assessment and the employee is medically able to perform the work, it is the Carrier which bears the financial consequences of its decision to withhold the employee from work. The Organization also cites authority for the principle that an employer must complete medical review promptly, and that an employee should not bear the burden of a delay.
The Organization concludes that the Carrier violated the agreement when it arbitrarily withheld the Claimant from service even though he could have been tested to expedite his return, and that the Carrier failed to return the Claimant to service in a
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reasonable amount of time. It states that the Carrier provided no valid basis for forcing the Claimant on an involuntary leave of absence, and it avers that the Carrier must now compensate the Claimant for all time lost.
The Carrier, on the other hand, maintains that the record does not establish any violation of Rule 17. It states that there is no question that the Claimant was experiencing symptoms consistent with COVID-19, and that he therefore was properly instructed to self-quarantine under the advice of the CDC and other global medical experts. The Carrier reiterates that this event occurred during a global pandemic, which has had widespread and tragic effects, which the CDC had addressed with its guidelines, including self-quarantine instructions. It emphasizes the CDC data regarding case numbers, and it avers that the Claimant was properly removed from service in an effort to avoid potential spread of the virus to his coworkers and others. The Carrier asserts that it is not responsible to pay employees who are not able to perform service due to medical disqualification, and it urges that the claim be denied.
We have thoroughly reviewed the parties’ arguments, correspondence and citations of authority, and we find that the Organization has not met its burden of establishing an agreement violation in these circumstances. We do not take issue with the principles set forth in the awards cited by the Organization, which place the “risk of fallibility” on the Carrier when it makes a determination to withhold an employee from service for medical concerns. In applying those principles to the instant case, however, we do not believe that the Carrier acted arbitrarily or unreasonably in withholding the Claimant from service for the period in question.
The award authority cited by the Organization reasonably holds that, if a supervisor or other management official believes an employee is not physically qualified to perform service, and the evidence reveals that such belief was unfounded, the employee should not suffer a loss based on the manager’s erroneous belief. The awards also stand for the principle that any medical review and determination of an employee’s fitness to return to work must be made in a reasonable amount of time.
Here, we find no indication that the Carrier’s determination the Claimant should be withheld from service was arbitrary or unreasonable, nor do we find any indication that the Claimant’s return to service was unnecessarily delayed. Unlike typical cases involving such issues, this is not an instance where a manager with no medical qualifications observes an employee having some apparent difficulty performing a work task and takes it upon himself to remove the employee from service pending a medical exam. To the contrary, we believe that the Carrier’s decision in this case was motivated
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by a reasonable attempt to comply with medical guidance regarding how to prevent spread of an unprecedented and debilitating pandemic after the Claimant reported experiencing symptoms consistent with COVID-19. There appears to be no dispute that the Carrier’s actions were consistent with advice from the CDC on how to address persons who reported experiencing symptoms consistent with COVID-19 or who reported exposure to other individuals who may have been infected, and there is no indication that the timeframe involved was in excess of that prescribed by the CDC guidelines.
We are not unsympathetic to the circumstances of an employee who lost wages during the pandemic due to having to quarantine. We are also aware that some employers have taken a different view of how to address lost work opportunities in such circumstances, either to incent employees to avoid coming to work and possibly spreading the virus, or simply for humanitarian reasons. The Carrier in this case, in fact, reports that it handles cases involving possible exposure at work differently than reports of exposure occurring outside the workplace. In any event, we are constrained to determine if an agreement violation has been established when the Carrier required the Claimant to quarantine and did not compensate him when he could not work, not to say what we think would be considerate or charitable. We do not find that a violation has been established here, and therefore, we must deny the claim.
Claim denied.
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 10th day of March 2023.