PUBLIC LAW BOARD NO. 6205
AWARD NO. 5
CASE NO. 5
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
PARTIES
TO DISPUTE
: and
UNION PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM
:
"Claim of the System
Committee of
the Brotherhood that:
( I ) The Agreement was violated when the Carrier
assigned junior employes to fill twenty (20) positions or
failed to fill eight (8) other positions advertised in Bulletin
Nos. NSF00915, NSF00917, NSF00918, NSF00929, NSF00931,
NSF00935, NSF00936, NSF00944, NSF00948, NSF00951,
NSF00953, NSM01250, NSM01260, NSM01263, NSM01285,
NSM01286, NSM01287, NSM01312, NSM01313, NSM01315, ;
NSM01319, NSM01320, NSM01321, NSM01323 and
NSM01324
between April
2 and 30, 1992, instead of
assigning Mr. J. D. Henderson (System File R-6/920428).
(2) As a consequence of the violation referred to in Part
(1) above, Claimant J. D. Henderson shall be assigned the
position with seniority in the class of system gang assistant
foreman and allowed the appropriate rate of pay for all
wage loss suffered during the period of April 27 to May 8,
1992, and awarded a roadway equipment operator position
with seniority in that classification and compensated at the
appropriate rate of pay beginning May 11, 1992 continuing
until the violation ceases."
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No
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FINDINGS:
Upon the whole record, after hearing, this Board finds that the
parties herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board is duly constituted
under Public Law 89-456 and has jurisdiction of the parties and the
subject matter.
As background to this dispute, Claimant was employed by Carrier
between June 23, 1980 and September 24, 1990. As
a
result of an on duty
accident on November 3, 1987, Claimant sustained back and neck injuries
which formed the basis for his initiation of a lawsuit under the Federal
Employers' Liability Act (FELA). During the pendency of this action,
Claimant continued to work as a burro crane operator with REO seniority.
Litigation commenced in 1990, and both Claimant and his physician
testified at trial about Claimant's permanent inability to perform work as a
laborer and expressed reservations about his ability to operate a crane.
Carrier entered into a settlement of the FELA action on August '6,1990
agreeing to pay Claimant $161,250.
On August 13, 1990 Claimant voluntarily bid into a lower paying
laborer job and commenced working in that capacity. Carrier removed him
from that position in September, 1990 when it discovered this fact and
physically disqualified him, an action protested by the Organization. In
Third Division Award 29818 the Board, on September 29, 1993, upheld
Carrier's actions in physically disqualifying Claimant from working
positions for which he held seniority other than the REO on the basis of the
doctrine of estoppel, and denied the claim which requested reinstatement
to service.
While that case was pending resolution at the Board, the Organization
initiated the instant claim, protesting Carrier's denial of work opportunities
to Claimant by refusing to award Claimant positions represented by some
25 different job postings in April, 1992 for which he applied. The
Organization averred that Carrier filled these positions with junior
employees and failed to fill 8 of the posted positions, thereby depriving
Claimant of work opportunities as an Assistant Extra Gang Foreman and
Track Machine Operator.
As developed on the property, the Organization's position is that the
testimony of Claimant and his medical expert at the FELA trial only
restricted Claimant from future employment in a laborer's position, and
not in any other position. It argues that Third Division Award 29818 only
restricts Claimant from holding positions to which he had seniority, and
notes that the bid positions encompassed in this claim do not fall within
that category. The Organization asserts that a Track Machine Operator
position is identical to an REO position, from which Claimant wads not
disqualified. It points to subsequent medical evidence proffered during the
claims processing indicating that Claimant can return as a burro crane
operator, but should not return on any type of laboring gang.
The Organization relies upon the following language of Rules 20(e)
and 19(b) in support of its position that Claimant was entitled to placement
in these jobs:
RULE 20 - BULLETINING POSITIONS - VACANCIES
(e) When no bids are received from employes
p~-,5
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retaining seniority in the class, the senior unassigned
qualified employe in the class, whether furloughed or
regularly assigned in a lower class, will be assigned. In
the event there are no qualified employes furloughed
or regularly assigned in a lower class, the vacancy or
new position may be filled- in accordance with the
provisions of Rule 19(b). If not filled pursuant thereto,
the position may be filled by appointment and
assignment bulletin will be issued showing name of
employe appointed.
RULE 19 - PROMOTION
(b) Positions of foremen and supervisors will be
filled by promotion of available qualified employes.
Positions of foremen or supervisors, or other positions
that are not filled through bulletining to employes in
seniority class, will be filled from available qualified
employes in the other classes of the seniority group,
and in the event not so filled will be filled from
available qualified employes in the other groups of the -
r
subdepartment .... the Management to - be the judge
with respect to positions covered by this section.
The Organization argues that since Claimant was not disqualified
from the posted positions, his overall seniority should have prevailed over
the junior employees selected to fill the positions and Carrier should have
been required to place him in such position, or at least in one of the 8
advertised positions which were not filled. The Organization also contends
that this claim is neither procedurally flawed nor duplicative of the claim
filed in Award 29818. It also asserts that Carrier's disqualification of
Claimant from these positions without giving him an opportunity to show
that he could perform the work in question is a willful violation of the
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fqwa
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Americans with Disabilities Act (ADA) and public policy.
Carrier initially argues that this claim is procedurally flawed on two
grounds. First, that it is duplicative of the one filed by the Organization in
Award 29818, since it seeks Claimant's reinstatement to a position after
his September, 1990 removal, and, second, that it is untimely since
Claimant's removal occurred in 1990 and the claim was not filed until
April, 1992. It also notes that the ADA allegation is the subject of a Federal
Regulation and not a matter arising out the collective bargaining
agreement.
With respect to the merits, Carrier contends that Claimant is
medically estopped from returning to work in any position other than REO,
and that the doctrine of res
judicata
should be followed with respect to this
finding of the Board in Award 29818. It notes that 21 of the bulletined
positions were in the Track Subdepartment, from which Claimant was
medically disqualified, and argues that the language of Rule 20(e) would
i
not grant a nonqualified employee any rights to a position. Carrier asserts
that the remaining 4 REO positions were filled with employees senior to
Claimant, noting that under the Agreement Claimant gave up his seniority
in the Roadway Equipment Subdepartment when he voluntarily
transferred from a higher rater job to a lower rated job in August, 1990.
With respect to the procedural issue, although the effect of this
award is to seek reinstatement with Carrier when such was specifically
sought in Award 29818, we find that the basis for the instant claim is the
denial of specific bid positions in April, 1992 rather than the Claimant's
September, 1990 removal from the laborer's position and medical
disqualification, and thus is not duplicative or untimely.
However, the finding of the Board in Award 29818
is res judicata
and directly applicable to the merits of this case. Therein, the Board
concluded that Claimant was medically estopped from asserting the right
to perform positions for which he held seniority other than REO, based
specifically on the medical evidence adduced during the FELA trial that
Claimant's condition was permanent and prevented him from safely
performing the heavy work associated with an extra gang laborers
position. The Board's finding of the applicability of medical estoppel to the
facts was clearly supported by the record and precedent and is not
palpably erroneous. See Third Division Awards 29408, 28719.
In this case the Organization bears the burden of showing that
Claimant was qualified for the posted positions. It failed to meet that
burden with respect to the 21 Track Subdepartment positions which
Carrier asserted required, at times, heavy labor work on extra gangs, and
was covered by Claimant's medical disqualification. Claimant's own medical
documentation indicated that he should not return to work on any tyke of
laboring gang. Similarly, the Organization failed to show that Claimant had
superior seniority to those employees awarded the four REO positions
referenced in the claim. It did not rebut Carrier's assertion that Claimant
forfeited his REO seniority under the Agreement when he voluntarily bid
into a lower rated position, or show what the nature of Claimant's alleged
seniority was in relation to those awarded the position.
Accordingly, the claim must be denied. We do not believe that
Carrier's determination in denying Claimant the bid positions under the
circumstances of this case or our finding in any way contravenes
Claimant's protections under the ADA or public policy.
PLC3 No ~ 1005
7
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AWARD:
The claim is denied.
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Dominic A. Ring Rick B. Wehrli
Carrier Member Employe Member
Dated:-_-~-_ Dated:__-7
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