PUBLIC LAW BOARD 6390
In the Matter of the Arbitration Between:
BURLINGTON NORTHERN SANTA FE
RAILWAY COMPANY
NMB Case No. 20
and Claim of J. Valenzuela
THE UNITED TRANSPORTATION UNION
STATEMENT OF CLAIM: Claim on behalf ot J. Valenzuela, Jr. for
Payment of all lost wages account refused exercise of seniority
when withheld from service account estopped by the Carrier.
FINDINGS OF THE BOARD: The Board finds that the Carrier and
Organization are, respectively, Carrier and Organization, and
Claimant employee within the meaning of the Railway Labor Act, as
amended, that this Board is duly constituted and has jurisdiction
over the parties, claim and subject matter herein, and that the
parties were given due notice of the hearing which was held on May
18, 2002, at Washington, D.C. Claimant was not present at the
hearing. The Board makes the following additional findings:
The Carrier and Organization are Parties to a collective
bargaining agreement which has been in effect at all times relevant
to this dispute, covering the Carrier's employees in the Trainman
and Yardman crafts.
Claimant sustained an on-the-job injury in April of 1988.
Civil litigation was commenced on his behalf against a construction
company allegedly involved in the incident; and the Carrier's
predecessor was added as a defendant in December of 1990. During
the litigation, certain representations were made with respect to
alleged permanent restrictions on Claimant's ability to work, one
of which was made by Claimant's physician, who when deposed stated
that the restrictions on Claimant were permanent. In January of
1991, Claimant settled this litigation.
In January of 1992, Claimant attempted to mark-up as a
Conductor. In February of 1992, the Carrier advised Claimant that
he was estopped from performing service for the Carrier. In April
of 1992, claimant's physician advised the Carrier that he could
return to his employment as a Conductor.
In January of 1994, Claimant again attempted to mark-up as a
Conductor and was again advised that he was estopped from
performing service for the Carrier, On February 23, 1994, Claimant
filed a claim based on the Carrier's refusal to allow him to return
to service, alleging a violation of Appendix No. 35, Section 2 of
the Road Schedule. The matter could not be resolved on the
property, and it was presented to the Board for disposition.
POSITIONS OF THE PARTIES: The Organization argues that the Carrier
improperly barred Claimant from exercising his seniority and
asserts that he should be allowed to return to service. It
contends that Claimant is physically able to return to work and
that he has been medically released to do so. The Organization
maintains that Claimant is entitled to compensation for all wages
of which he was deprived, from the time the Carrier asserted he was
estopped from returning to service until the time at which he is
allowed actually to mark-up for service. It argues that the
Carrier was advised that Claimant desired to return to work, but it
has held Claimant out of service. The Organization maintains that
Claimant is contractually entitled to mark-up for service and is
not precluded front doing so as a result of his prior injury or as
a result of the subsequent litigation and settlement that followed.
It urges the Board to sustain the claim in its entirety.
The Carrier asserts that the claim was untimely filed because
Claimant attempted to mark-up in 1992, but did not file the claim
until 1994, far longer than 60 days following the occurrence. In
also argues that the claim is barred by the doctrine of laches,
pointing out that it lay dormant for 10 years. The Carrier
contends that Claimant sought and secured a substantial settlement
based on the representation that he was permanently disabled and
could not perform the nonial duties of his railroad occupation, it
maintains that reinstatement and back pay are inconsistent with the
position Claimant took in connection with the civil Litigation and
settlement. The Carrier contends that he should be precluded from
taking this position now. It urges the Board to deny the claim in
its entirety.
DISCUSSION AND ANALYSIS: The evidence in the record establishes
that Claimant entered into a settlement as to his on-the-job
injury. During the course of the litigation, his doctor indicated
that Claimant was permanently disabled; and the record indicates
that the asserted-disability was not total, Claimant's alleged
permanent disability was neither acknowledged nor expressly relied
upon in the settlement, although in an unsworn letter, the
Carrier's General Claims Manager opined that the settlement was
based on Claimant's contention that he could not return to work as
a Conductor/Brakeman. Claimant did not, by the terms of the
settlement, relinquish his employment status. The Carrier could
have required relinquishment of such rights as a part of the
settlement, but it failed to do so. Thus, concludes the Board,
Claimant retained a right to reinstatement provided he can
establish that he is fit for duty.
The Carrier's argument that Claimant is estopped from
asserting that he is fit is not persuasive because in light of the
particular facts and circumstances, the Board is not convinced that
the settlement extinguished Claimant's right to seek reinstatement.
Therefore, the Board holds that Claimant has the right to apply for
employment but must successfully complete a return to work
physical.
The record does not establish that Claimant was fit for duty
at any time until he passed a return to work physical. Therefore,
although he retains a right to seek re-employment, the Board
concludes that Claimant is not entitled to back pay because it was
not established that he was capable of returning to work during the
period that he was out of work.
As to the Carrier's argument of untimeliness, the Board is not
convinced. The record indicates that Claimant did not make a claim
in 1992 following the Carrier's advising him that his claim was
estopped. As found above, that advice was in error. Thus, Claimant
cannot be precluded from making a timely claim in 1992 when he had
been misinformed at that time that his claim was barred. The Award
so reflects.
AWARD: The Organization's claim is sustained in part and denied in
part. Claimant shall be permitted to apply for employment, subject
to passing a return to work physical. The Organization's claim for
back pay for the period Claimant was out of work is denied. The
Award shall be implemented within thirty (30) days of the date
rendered herein.
Dated this 4th day of September, 2002.
M. David Vaughn, Neutral Member
Gene L. Shire, Carrier Member Rick Marceau, Employee Member