The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter when award was rendered.
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
EMPLOYES' STATEMENT OF FACTS: Electrician Albert Susie, hereinafter referred to as the claimant, was regularly employed by the Southern Pacific Company (Pacific Lines), hereinafter referred to as the carrier, and regularly assigned prior to August 19, 1968, as an electrician under the supervision of H. A. Henderson, Master Mechanic, Western Division, with headquarters at Oakland, California.
On August 6, 1968, claimant was instructed by General Foreman E. Hoglund, to report to Dr. Cornelius Doherty at the Harkness Community Hospital and Medical Center, to undergo physical examination due to age. On August 14, 1968 as requested by the carrier, claimant was examined by Cornelius
however, the carrier does not confide in outside doctors the responsibility of passing upon the physical qualifications of its employes but rather upon the chief surgeon of Southern Pacific Employees Association who is familiar with the duties required and performed.
The carrier here asserts that there is no basis or merit for the claim in this docket and respectfully requests that it be denied in its entirety.
The board's attention is further directed to the fact that claimant has relinquished all rights to service with the carrier and has been awarded annuity by the Railroad Retirement Board retroactive to August 19, 1968.
The carrier here asserts that the claim in this docket is entirely without basis or merit, and therefore respectfully requests that it 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 was a 75 year old employe of Carrier. He had been in service of Carrier since 1950. After several absences because of illness, he was returned to duty on February 8, 1968. Although he was released to full duty by his attending physician, the Carrier's supervisors limited his activities to light work. During the month of June, 1968, he was absent because of illness all but 4 working days. Carrier states that when he did work, he was unsteady and exhibited pronounced feebleness. Because of unsatisfactory performance, he was instructed on August 6, 1968, to report to the hospital for a further physical examination. Claimant reported for such examination on August 14, 1968, and the Chief Surgeon stated that for his age, he is alert, cooperative, with no manifestations of feebleness. This Chief Surgeon stated further that Claimant's general physical examination was within normal limits for a man of his age. The Chief Surgeon further stated, however, that in the best interests of the patient's safety, it was his judgment that Claimant be restricted from liftinb weights over 25 lbs., climbing ladders, or working off the ground. Upon the basis of this report, Claimant was dismissed from service on August 18, 1968. On April 15, 1969, Claimant was awarded annuity effective August 19, 1968. Carrier has presented probative evidence in the form of medical reports and absentee records because of illness, to uphold the dismissal from service of Claimant. Rule 96 of the current Agreement, which outlines Electrician's work, shows conclusively that the work of an Electrician requires an agile employe physically able to lift large weights, and to perform heavy work both on and off the ground. It appears from the record that Carrier has been extremely patient with this Claimant for a long period of time prior to his dismissal in view of his past physical history. In line with this referee's prior
Award 5652, it is the finding of this Board that not only for the safety of Claimant, but for the safety of other employes working with Claimant, Carrier had every right to take the action of dismissing this Claimant from service for the reasons above set out.
The Carrier Members are in accord with this Award, however, reference to Claimant's "dismissal" from service is incorrect. Claimant was "withheld from service," as indicated in the claim, when it was determined he could not handle all the duties and responsibilities of his position; he was not "dismissed."
The referee, along with the majority, erred in adopting this Award based on their findings which read in part:
The emphasis on the above quote is made by us to point out the fact that the majority has ruled on a dismissal of the Claimant. This issue was not before the Board at all. The issue before the Board was that the Carrier unjustly withheld the Claimant from service beginning August 19, 1968, due to physical restrictions, but there is nothing in the record to the effect that the Claimant was dismissed from the Carrier's service. The Carrier, in their Ex Parte Submission page 8, or page 34 of the record, state the following:
Therefore, it appears that the dispute was decided on an issue not before the Board and an Award of this kind should be set aside in keeping with the Railway Labor Act, as amended, as the Board did not confine its decision to the issues in dispute.