SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L. (FIREMEN & OILERS)
DISPUTE: CLAIM OF EMPLOYES: That Rule 16, rules of the firemen and oilers' agreement, also known as rules for mechanical department employes, and Award No. 368, Docket No. 350, rendered on the 3rd day of August, 1939, by the Second Division of the National Railroad Adjustment Board, be lived up to by the Erie Railroad Company and that Laborer M. H. Persing be reimbursed for such time he was held from work due to being compelled to submit to a physical examination by the Erie Railroad Company doctor.
EMPLOYES' STATEMENT OF FACTS: On August 26, 1939, M. H. Persing reported for work after being ill for several months, he was advised he would have to report to the Erie Railroad Company's doctor for a physical examination before he could return to work. Mr. Persing took the physical examination under protest, and was held out of service until October 25, 1939, when he again reported to the Erie Railroad Company's doctor for another examination and was told to go to work.
was violated insomuch as the rule does not stipulate that employes detained from work account of sickness must take a physical examination before they can return to active service.
That Award No. 368-Docket No. 350 referred to, which is applicable to this case, reads in part as follows:
5. No claim or protest of any nature was made by Persing or his representatives until the communication October 16, 1939, hereinabove referred to. Persing did not report to the shop until October 25, 1939, at which time he was re-examined and returned to work on the same day.
6. There was nothing in the regulations concerning leaves of absence to prevent Persing reporting for work prior to October 25, 1939, if, in his opinion, his physical condition was such as to permit him to perform usual duties.
7. Employes progressing this case alleged violation of Rule 16 of Rules for Mechanical Department Employes, effective October 1, 1934. This rule did not supersede or annul any existing leave of absence practices nor is it demonstrated by the employes that Persing was discriminated against because he was treated in exactly the same manner as all other employes are treated under similar circumstances.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
There is no provision in this agreement providing for re-examination of the employe involved in this case. Moreover, there is nothing in the record or in the history of the controversy between the employes and the carrier on this question that would indicate that the employes were ever willing that such a practice be adopted. However, this Board has consistently held that there must be some limit to the contention that the carrier cannot require such examinations under any circumstances. It would not be reasonable to contend that there are no circumstances in which it may not be required. See Awards No. 481 and No. 547.
This record shows Persing voluntarily absented himself from duty on May 18, 1939. He reported August 26, 1939, at the general foreman's office about 10:30 A. M. The record shows that it was obvious that his physical condition was not good and he was sent to the local examining surgeon who recommended that he rest for sixty days.
It is the contention of the employes that he took the examination under protest but he made no written protest or objections at that time. He returned to work on October 25, 1939.
Thus we have a record in which the man was sick for a period of some months. The examination of a medical man shows that he was not able to go to work at the time it is now claimed he desired to. No evidence of his availability or physical condition was furnished at that time by the employ es. Under these facts the claim cannot be allowed.