Award No. 4817 Docket No. 4785 2-SLSW-CM-'66
EMPLOYES STATEMENT OF FACTS: Carmen R. J. Smith, hereinafter referred to as the Claimant, entered service with the Southern Pacific-Texas and Louisiana Lines at their Dallas, Texas mechanical department facilities known as Miller Yard, July 8, 1959, and held assignment there until February 13, 1960, transferring to Fort Worth on Carman's assignment effective February 14, 1960. As result of consolidation of mechanical department facilities at Dallas, Texas between the St. Louis Southwestern Railway Company, hereinafter referred to as the carrier and the Southern Pacific-Texas and Louisiana Lines, with carrier becoming the operating railroad, effective January 1, 1964. The position of Virgil M. Reid, Jr. a supervisor in the Miller Yard, was abolished, and he placed himself on his mechanic's seniority at Fort Worth on that date, thus displacing the claimant, who on January 14 made application for one of the vacancies for carmen at Dallas. He was instructed to report to Southwest Clinic in Dallas for physical examination by company doctor, and was examined by Dr. Carlos Piocentini. He passed the examination required at that time, was hired, and went to work on January 14, on third shift assignment in Austin Street Yard, working from 11:59 P. M. to 7:59 A. M., Sunday through Thursday, with Friday and Saturday rest days. Claimant continued to work this assignment, and on March 11, 1964 was served notice signed by carrier's clerk stenographer, not a carrier officer, that under new Cotton Belt policy, it would be necessary for him to have back x-ray made on March 12. He complied with the instructions, and on March 13, 1964 was served notice over the signature of General Foreman C. E. Bynum that his application for employment was being disapproved, which was the 60th day since his employment had started. Protest was immediately made by telephone to the
For reasons set forth above, carrier respectfully submits that the claim is not supported by the rules and should be denied.
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.
The following facts are not in dispute: Prior to January 1, 196, Claimant, Carman R. J. Smith, had held an assignment as a Carman wtih the Southern PacificTexas and Louisiana Lines (who will hereafter for convenience be referred to as Southern Pacific) at Ft. Worth, Texas. On December 13, 1963, a Memorandum of Agreement was entered into between the Southern Pacific and the St. Louis Southwestern Railway Company (the Carrier involved herein) consolidating their separate Mechanical facilities and service at Dallas, Texas, effective January 1, 1964. As a result the position of a Supervisor at Ft. Worth was abolished and the Supervisor placed himself on the Mechanical seniority at Ft. Worth on January 1, 1964, thus displacing the Claimant. Claimant's name was not included in the list of those on the seniority roster to be transferred to Carrier's list at Dallas without having to fill out an employment application or taking a physical examination. On January 13, 1964, the Claimant, R. J. Smith, made an application for one of the vacancies for Carmen at Dallas and he was directed to report for a physical examination which he did and went to work on January 14, 1964. Subsequently, and on March 11, 1964, Claimant was served notice that it would be necessary for him to have a back X-ray made. He complied with the instruction and on March 13, 1964, within sixty (60) days of the date he commenced work, he received notice from the General Foreman that his employment application was being disapproved.
It is contended by Petitioner that Claimant was displaced from his Carman assignment at Ft. Worth by reason of the Memorandum Agreement entered into on December 13, 1963, and, as Section 13 of the Memorandum Agreement placed Claimant within the protection of that Agreement together with the Washington Job Protection Agreement of May 1936, Carrier was without any authority to request him to submit to the first physical examination as well as the application for employment procedures. However, Claimant's name did not appear on the Seniority Roster attached to the Memorandum of Agreement. Consequently, any protection which the Claimant might be entitled to under Section 7 of the Washington Agreement would necessarily be a matter between the Claimant and the Southern Pacific and would be a controversy properly referable to the committee provided for in Section 13 of the Washington Agreement. It is not properly before this Board. In so far as this Carrier is concerned, when Claimant applied for employment with this Carrier his status was the same as any other carman applicant for employment.
Claimant, in addition, maintains that Carrier violated Rule 41-1(a) of the Agreement which provides: "After entering service no employe will be required to submit himself for physical examination, except as hereinafter provided;" that at the time
Claimant made application for employment, he completed all the physical examination required, passed it and was accepted for employment; that in spite of and in violation of Rule 41-1(a) in March, 1964, a re-examination was ordered and the reason given by Carrier for the disapproval of his application for employment was on account of his physical rating.
In refutation of Petitioner's contention, Carrier cites and relies upon Rule 23 of the Agreement which reads as follows:
Carrier further urges that the request for an X-ray examination to check the condition of applicant's back was a reasonable requirement.
From a reading of the rules involved, it is apparent that Rule 41-1(a) does not reach the probationary period provided for in Rule 23. If it did so it would render Rule 23 ineffective. Rule 41-1(a) applies after an applicant attains his right as employe, not while he is an applicant on probation. Without giving in the notice any reason for disapproval, a simple statement would have been sufficient compliance within the meaning of Rule 23. In disapproving Claimant's application for employment the Carrier was acting within the scope of its Managerial prerogative and there is nothing in the record to indicate that the action of the Carrier was arbitrary or capricious. See First Division Awards 5256, 6175, 10196, 10775 and 12029.