The Second Division consisted of the regular members and in
addition Referee Ben Harwood when the award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. 0. (Carmen)
EMPLOYES' STATEMENT OF FACTS: Mr. L. W. Beard, hereinafter referred to as the claimant, was employed by the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, in the capacity of carman at the Little Rock Union Depot, Little Rock, Arkansas, until he was injured on duty August 20, 1955. On April 29, 1957, the claimant brought suit against the Railway Express Agency, Inc. and the carrier in St. Louis Circuit Court and judgment was rendered in favor of the claimant who was awarded a settlement by the court. Mr. Beard, the claimant, did not forfeit his seniority rights as carman in the employ of the carrier and on July 25, 1960, the Local Chairman of Carmen, Mr. J. M. Pulliam, addressed letter to Mr. E. McNabb, Terminal Master Mechanic, reading as follows
The carrier need not reemploy a person who cannot perform all of the duties of his position. In Award 3183, a car cleaner was injured and could not perform all the duties of a car cleaner. The doctor had reported the claimant was qualified for light work, but the carrier had no light work for a cax cleaner. The Board found "that claimant was unable to resume the heavier duties he had been performing" and "the claim is without merit." Similarly here, there are no light duties of a carman. See Award 1780 where a claim of a machinist seeking restoration to service for light duties only was denied. For other awards upholding the carrier's right to refuse to employ persons who are not physically qualified, see Awards 2726, 2799 and Third Division Award 6740.
The issue in dispute may be simply stated. Claimant worked as a carman until injured August 20, 1955. He was not able to work thereafter because of the injury but on August 1, 1960, he asked to go back to work. He was required to take a physical examination in accordance with carrier's operating instructions. The doctor's report showed that claimant's back had been injured and that his physical condition did not meet the carrier's standards. Claimant has never submitted a report of his personal doctor as to his physical condition. Under those circumstances, the carrier could not put claimant back to work for his own safety as well as his inability to perform the work of a carman. This claim to reinstate a man who is not physically qualified must be denied.
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.
Claimant's employment by Carrier commenced in 1943 as Carman Helper. He became a Carman in 1946. While at work on August 20, 1955 lie was injured in an accident in which an express agency baggage truck struck him in the back. In a subsequent law suit in 1957 he secured a favorable verdict following which he received a settlement from the Railway Express Agency, Inc. Prior to date of the claim before us, August 1, 1960, Claimant had not worked since his injury in August of 1955. He had been carried on the seniority roster as disabled.
In July of 1960, the Local Chairman of Carmen suggested in a letter to the Terminal Master Mechanic of North Little Rock Diesel Facilities that Claimant be notified to return to Little Rock to protect his seniority as Carman or show reasons for not doing so-this because of complaints from members of the Organization that Claimant was engaged in other employment, something later shown not to have been true. However, while this matter was under investigation by the Terminal Master Mechanic's office, Claimant returned and asked to go back to work. Under Operating Instructions he was later given a physical examination, his injury in 1955 having disabled him from working and he having been out of service for more than a year.
The examination of Claimant was conducted by Dr. P. O. Thomas, District Surgeon at Missouri Pacific Employes' Hospital, on October 27, 1960. The 4307-9 187
Notwithstanding the result of said physical examination of October 27, 1960, Claimant was withheld from service, the reason given, as later stated in letter written to General Chairman Bond by Chief Personnel Officer Smith on March 21, 1961, being that:
Carrier insists that "the report of the Medical Examiner is merely to guide the employing officer who must make the final decision and is only one of the factors governing the decision"; that the responsibility for the decision is and, must be that of "the Superintendent or other responsible officer, since qualifications rests (sic) not only on physical qualifications but on ability, training and experience to perform the duties to which assigned." (Emphasis ours.) Here, however, the record itself informs us that Claimant, by continuity of employment with this same Carrier, had given proof of his ability and demonstrated the results of his training and experience from the commencement of his performance of the duties to which assigned, beginning with his initial employment as a Carman Helper in 1943, through subsequent upgrading to Carman in 1946 and continuing until his injury during the course of employment on August 20, 1955.
Award 3719 of this Division, Referee Stone, March 29, 1961, is cited in this controversy by both Claimant and Carrier. We believe that award is controlling. As there observed: