Public Law Board No. 6204
Parties to Dispute
Brotherhood of Maintenance of Way )
Employees )
vs ) Case 34/Award 34
Burlington Northern Santa Fe )
Statement of Claim
1. The dismissal (seniority termination) of M. J. Koziara by notification dated
May 16, 2003 from Structures Supervisor L. Welte was arbitrary, capricious and in
violation of the labor Agreement.
2. As a consequence of the violation referred to in Part 1 above, Mr. M. J. Koziara
shall now be restored to service with all back pay and benefits.
Background
The Claimant was advised on January 1, 2003 that he was being recalled to service
of the Carrier to work on mobile gang BBCX0147. He was advised to report to structures
supervisor Louis Welte or his representative on district 500. The Claimant subsequently
applied for and received a leave of absence running from January 16, 2003 through
January 31, 2003. On January 17, 2003 he wrote to supervisor Welte requesting that he
be granted a medical leave of absence to extend no more than 60 days "...to deal with my
conditions...". This note had attached to it a medical form filled out by a doctor. That
form states that the Claimant was unable to travel "...60 miles from home base..." and that
he could return to work "...with limitations..." on January 16, 2003 through March 15,
2003. Thus, as a preliminary matter, the Claimant requested a leave but his medical note
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stated that he was able to work with provios albeit the latter are not clarified.
On January 21, 2003 road master Welte wrote to the Claimant that his request for
an extension of his leave of absence beyond January 31, 2003 was being denied. He was
also told to contact the regional manager of medical and environmental health in Denver,
Colorado to discuss issues involved with his request for a leave of absence. The Claimant
responded to this by providing a limited release of documents by health care providers
whom he had been seeing. These were subsequently contacted by the Carrier and two of
the four of these providers gave information to the Carrier. The substance of that
information is condensed by the Carrier's assistant medical officer in a letter she wrote to
the Claimant on April 8, 2003. It ought to be observed here that albeit the Claimant's
leave terminated officially starting on February 1, 2003 he still had not returned to
work. According to this Carrier officer information provided to her was that the Claimant
"...seemed..." to have either an unresolved social situation at home disallowing him from
working in an unrestricted manner, or a behavioral health issue having the same effect for
which the Claimant had not pursued treatment. The recommendation of the assistant
medical officer, to management, was that the Claimant be removed from service until
"...some clarification regarding (his) current status (was) obtained...". The Claimant was
given until April 21, 2003 to provide information to clarify his status and to comply with
any recommendations made to him by EAP. Thus he was put on medical leave by the
assistant director from April 8-21, 2003 so that he might respond to the admonitions
given to him to provide clarification on his status and/or to get help. In the interim, and
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somewhat inexplicably, the Claimant did bid on a position in April 15, 2003 but was not
awarded it since he was on medical leave during the April 8-21-, 2003 time frame.
Thereafter the Claimant was sent a letter by road master Welte, under date of May 16,
2003 advising him that he was being terminated since he had failed to obtain an extension
of his leave of absence, and since he had failed to report for duty.
Discussion & Finding
The Claimant in this case was explicitly told by the road master on January 21,
2003 that his leave of absence was not being extended and he was concurrently told to
contact the medical and environmental health department in Denver. The Claimant
argues that because of this he assumed that his leave of absence was extended beyond
January 31, 2003. There is no documentation to that effect in the record. Further, the
regional manager of medical and environmental health states that while she continued to
seek information from the Claimant about his condition she (1) never received such
information from him and (2) never herself placed him on a medical leave of absence.
The Carrier's assistant medical director did place the Claimant on a medical leave for a
short period of time in April of 2003 (from April 8, 2003 through April 21, 2003) with
what appears to have been a courtesy so that he could respond to continuing requests for
clarification about his status and/or to get help. It is true that the Claimant did bid on a
position in April of 2003. But if he did so, he could not have been on medical leave as he
claimed and he must obviously have known that. Employees on medical leave to not bid
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on positions.
Any employee under the operant labor Agreement must retain approved leave of
absence. This is required under Rule 15. The record in this case fails to warrant
conclusion that the Claimant to this case did that. Thus the letter of dismissal he received
on May 16, 2003 from the Carrier was not in error.
Award
The claim is denied.
y~
dwar~trup, Neutral Member
T as M. R ing, Carrier Member
Roy C. obinson, Employee Member
Date: