PUBLIC LAW BOARD NO. 6247

AWARD NO. 303
CASE NO. 303

PARTIES TO
THE DISPUTE:

UNITED TRANSPORTATION UNION
VS.
THE UNION PACIFIC RAILROAD COMPANY (WESTERN LINES)

ARBITRATOR: John L. Easley

DECISION: Claim Sustained in Part

DATE: May 8, 2002 STATEMENT OF CLAIM:

Claim of Switchman E. J. Jones, Los Angeles Service Unit, for replacement of wage loss and vacation credits as a result of his delay in returning to service.  Mr. Jones was released by his physician for return to duty on September 11, 2000, but has not been allowed to mark up.

STATEMENT OF FACTS:

The case before this Board is comprised of two parts, delay in being allowed to return to service and what job restriction, if any, is suitable for his continued employment.

The Claimant sustained an injury to his back in 1999. He was treated for the injury and underwent rehabilitation. He was released by his physician to resume services with the Carrier on September 11, 2000.

The Carrier did not accept the September 11, 2000 release, and requested that the Claimant and his physician complete form "Union Pacific Medical Progress Report".

The Claimant met with his physician and completed the required form on October 10, 2000. The Carrier Medical Director received the completed form on October 17, 2000 and provided Superintendent Workman on October 24, 2000 with the following.

FROM: UNION PACIFIC MEDICAL DIRECTOR
      FITNESS-FOR-DUTY REVIEW DOCTOR

RE:        EDWARD J. JONES
SSN:
JOB TITLE: SWITCHMAN/BRAKEMAN

BASED ON MEDICAL DOCUMENTATION AVAILABLE TO THE
HEALTH SERVICES DEPARTMENT AT THIS TIME; THIS EMPLOYEE
IS CONDITIONALLY* MEDICALLY CLEARED TO WORK WITH THE
FOLLOWING RESTRICTIONS:

1. MAY LIFT UP TO 50 LBS. 2 TO 3 TIMES PER HOUR
2. MAY OVERHEAD LIFT UP TO 30 LBS. 2 TO 3 TIMES PER HOUR
3. MAY CARRY UP TO 50 LBS. 2 TO 3 TIMES PER HOUR
4. MAY SIT UP TO (8) EIGHT HOURS PER SHIFT, MAY STAND UP TO (8) EIGHT HOURS PER SHIFT.
5. MAY OCCASIONALLY (33% WORKSHIFT) CLIMB AND MAY OCCASIONALLY WALK ON UNEVEN SURFACES (33% WORKSHIFT).

On December 1, 2000 Superintendent Workman advised the Claimant as follows.

Dear Mr. Jones:

Your medical case has been referred to the Health Services Department to determine your current medical status and your ability to perform your job duties. This medical review was performed for the stated purpose of determining your ability to safely perform your job duties. After completing the medical review, the Health Services Department finds no further reason for> your continued disability, and you can return to work with the following restrictions which can be accommodated.

1. May lift up to 50 Ibs. 2 to 3 times per hour.
2. May Overhead lift up to 30 Ibs. 2 to 3 times per hour.
3. May carry up to 50 Ibs. 2 to 3 times per hour,
4. May sit up to (8) eight hours per shift, may stand up to (8) eight hours per shift.
5. May occasionally climb (33% work shift) and may occasionally walk on uneven surfaces (33% work shift).

You will need to provide medical updates to the Health Services Department in one year.

PLB-6247
AWARD NO. 303
PAGE 2

Please contact your manager before December 8, 2000 to arrange for a Return-To-Work conference, and to review the accommodations that can be made to facilitate your return to work.

The Claimant complied with the December 8th deadline, however, was not allowed to mark up until April 8, 2001. It appears local management had a problem with what jobs were available to accommodate the physical limitations imposed by their Health Services Department

When returned to service, the Claimant worked as a Herder Console Operator and as Helper Look Out. The Herder Console job was a regular assignment which was subsequently combined with another, limiting work opportunity. The Helper Look Out position was called from the Trainmen's extra board on an as needed basis.

On or about July 17, 2001 the Carrier advised the Claimant that the previous job restrictions were being removed and he could now accept calls in through freight and local service.

The Claimant refused to accept this change in status and refused to accept calls for the expanded service. Finally, the Local Chairman removed the Claimant from the extra board on August 16, 2001, and he has to date remained in a laid off status.

FINDINGS OF THE BOARD:

The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, that the Board is duly constituted by the agreement of both parties; that the Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.

The two issues will be treated separately, the first being unreasonable delay from the time the Carrier's Health Services Department received the completed "Union Pacific Medical Progress Report" on October 17, 2000, and on April 8, 2001 when the Claimant was allowed to mark up. The second issue can an employee impose job restrictions on himself.  Unreasonable Delay: This Board finds that two weeks should have been ample for the Carrier to decide on a work accommodation for the Claimant, therefore, the Claimant will be allowed payment for all time lost commencing November 1,2000 through April 7, 2001.

PLB-6247
AWARD NO. 303
PAGE 3

Self Imposed Job Restriction: The Carrier's Chief Medical Officer is responsible for imposing and removing job restrictions placed on employees. Based on his knowledge of the physical limitations of the employee and the work requirements of the various assignments available to the employee.

This Board finds that it is improper for an employee to limit himself to certain job Assignments. This is a responsibility of the Carrier.

AWARD:

Claim Sustained for time lost November 1,2000 through April 7,2001.

Claim for time lost from July 16, 2001 until returned to service is denied,

EXECUTION ORDER:

The Carrier will comply with this award within 30 days of the above date.

John L. Easley, Chairman and Neutral Member

J. Kevin Klein                  A C Hallberg
Organization Member             Carrier Member