The Second Division consisted of the regular members and in
addition Referee William H. McPherson when award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
CHESAPEAKE & OHIO RAILWAY COMPANY
(Chesapeake District)
EMPLOYES' STATEMENT OF FACTS: The Chesapeake and Ohio Railway Company, hereinafter referred to as the carrier, owns and operates a large facility at Russell, Kentucky, consisting of diesel house, shop track and transportation yards where cars are switched, repaired, classified and cars are interchanged from other roads to the C&O lines.
Carman R. V. Crum, hereinafter referred to as the claimant, held regular assignment on the shop track, first shift, hours 7:00 A. M. to 3:30 P. M., work week Monday through Friday, rest days Saturday and Sunday. Claimant sustained a back injury when a Chesapeake and Ohio Railway Lack struck his car on a IJ. S. Highway while not on duty. Claimant filed a suit account of said accident and verdict was rendered by a State Court Jury. Claimant was off work account said accident commencing July 27, 1966; however, claimant's physical condition showed steady improvement until finally claimant felt that he had reached the point physically where he could return to work and perform adequate service. With reasonable cooperation from the carrier, claimant's seniority was such that he could bid on a job doing light work. Claimant's
In view of the above, the carrier asks that the case be dismisscd on the basis that Crum may not now come before the Board and make pleadings in direct conflict with his pleadings before the court which were swayed by such pleadings to the extent that Crum was awarded a sizable verdict; and without prejudice to this position that the claim of Employes be denied on basis of merits.
FINDINGS: The Second Division of the Ad j ustment 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 first employed by Carrier in May of 1947 and holds Carmen seniority as of April, 1956, at Carrier's facility at Russell, Kentucky. While off duty on July 27, 1966, he was involved in a collision with one of Carrier's trucks, aggravating an apparently congenital back defect to the point that he was unable to continue work. He brought suit for damages against Carrier, claiming that, although he would eventually be able to perform light work, of some kind, he would never be able to resume work for Carrier. He asked for $150,000 damages on the basis of normal possible annual earnings of about $6,000 at age 38. In November, 1967, he .obtained a jury award of $54,575, which was paid. On July 5, 1968, he reported for work and was referred for examination to Carrier's local medical examiners. Their reports were presumably forwarded to Carrier's Chief Medical Examiner, and Claimant was notified on August 20 that he had been found to be physically disqualified for resumption of service at that tine.
The Organization contends that Carrier has violated Rule 23 of the Agreement (providing that employes who have given long and faithful service and have become unable to handle heavy work will be given preference for light work in their line) and Rule 38 (providing that an employe will not be suspended or dismissed without being given an investigation). It further contends that several doctors, including some in Carrier's employ, have certified
that Claimant is able to resume carmen's work. Although it admits that Claimant is permanently disabled for the heavy work of a car repairman and that "his condition is the same now as it was at the time of the trial" (which appears probable in view of the medical testimony at the trial and the fact that he has not had a further operation since that time), it contends that he is able to perform the allegedly "light" work of a car inspector. It points out that Claimant did not plead that he was permanently and totally disabled, and contends that the Carrier's medical witnesses all testified that Claimant would be able to resume work. Finally, it contends that our Award No. 3837 should be controlling in this case, and that Carrier has acted in an arbitrary and vindictive manner in withholding Claimant from service.
Carrier contends that Rule 23 was not violated because Claimant is physically disqualified for any carman's work, and that Rule 38 is inapplicable because Claimant has not been suspended or dismissed, but remains on the seniority roster. It alleges that to return Claimant to service would endanger him and his fellow-employes, since he has had an exceptional number of on-the-job accidents, several of which required hospitalization, three of which involved back injury, and for three of which he obtained financial settlements. Carrier further contends that the doctors' reports, on which Claimant chiefly relies, were in one instance fraudulent and in the other based on superfici<^.l examination. It urges that our Award No. 3837 is not applicable to the present circumstances, and that in any case Claimant is now estopped front clairling that he is qualified to resume service with the Carrier because of his successful contention in his damage suit that he would never be able to resume his prior employment.
We must first consider the basic claim of estoppel. In Award No. 38^> 7 we denied equitable estoppel, but in that case a financial settlement was reached by negotiation, in the course of which the carrier sought to obtain a resignation but abandoned that position, thus recognizing that resumption of service might well be requested.
In our judgment, what is involved here is not equitable estoppel, but collateral estoppel, as found by the United States Court of Appeals for the Fifth Circuit in Jones v. Central of Georgia Railway Co. (331 F. 2d 649) and as discussed by the United States Court of Appeals for the Third Circuit in Scarano v. Central Railroad of New Jersey (203 F. 2d 510).
Concerning the pleadings of Claimant in his damage suit, the Organization points out that the written Complaint claimed only a "diminished capacity to work" and "permanent disability," not total disability. It contends that we cannot properly look to the claims made by Claimant's attorney in his opening and closing statements to the jury because they were not evidence. At this point we are concerned not with the evidence but with the claims presented to the jury, and it makes no difference whether they were presented in writing or orally. It is clear that Claimant contended that he would never again be able to work for Carrier. We shall give only one quotation from the opening statement and two from the closing statement, without giving the full context that appears in the record:
There remains only the question as to whether Claimant was successful in his pleadings. The size of the jury's award, in conjunction with the suggestion made to it that Claimant might well earn at least $60,000 elsewhere, justifies our conclusion that the jury was persuaded that he could never return to his former employment, even though the award was not much more than a third of the amount requested. Having successfully pressed certain claims in his court case, Claimant cannot now seek a return to service on the basis of contradictory claims.
The Parties have cited a number of Board awards and court cases. A review of numerous awards is presented in Award No. 2 of Public Law Board No. 269, with Howard A. Johnson as Chairman. It will not be repeated here. We believe it shows that our decision in this case is consistent with the vast majority of the pertinent awards. We think it is also consistent with a long line of court cases mentioned there and with the opinion in the most recent major case on this subject by the United States Court of Appeals for the Fifth Circuit in Hodges v. Atlantic Coast Line Railroad Co. (863 F. 21 649).