The Second Division consisted of the regular members and in
addition Referee Irving R. Shapiro when award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
THE CHESAPEAKE & OHIO RAILWAY COMPANY
(Chesapeake District)
EMPLOYES' STATEMENT OF FACTS: Machinist A. L. Ross, hereinafter referred to as the claimant was employed by the Chesapeake & Ohio Railroad, hereinafter referred to as the carrier, for a period of forty-four (44) years and two (2) months at various shops on Carrier's property, having transferred to Carrier's Huntington, West Virginia Shop on January 6, 1969 because of a coordination of facilities at Ashland, Kentucky, following his work and bringing his Ashland seniority with him to Huntington, West Virginia.
Machinist Ross was assigned on the first shift 7:00 A. M. to 3:30 P. M. Monday through Friday, with rest days Saturday and Sunday.
The Carrier represented by Mr. D. W. Walker, Shop Superintendent, Huntington Shops, notified claimant under date of February 13, 1970 to attend an investigation to be held in Production Manager's Office at Huntington Shop at 9:00 A. M. February 19, 1970; however, this date was by mutual agreement changed to February 25, 1970 at 1:00 P. M. on the following charge:
Shop Superintendent Walker's letter is attached hereto and will be marked Exhibit A.
partment representative, had not returned to work, and has signed up with the Railroad Retirement Board for unemployment insurance. Ross now has other claims pending alleging that he is being improperly withheld from the service of the carrier, etc.
It is well established that the carrier has the right to determine whether its employes are physically qualified to perform service with reasonable safety to themselves, other employes, the carrier, and the public at large. Ross' refusal to undergo physical examination in order that this determination may be made is tantamount to a complete refusal to recognize authority at an attempt to impose his personal whims over the rights of all others.
Carrier submits that the minimal discipline rendered is extremely lenient and urges that this Board deny the claim of the Employes as submitted.
All data herein submitted in support of carrier's position has been presented to the Employes or duly authorized representatives thereof and made a part of the question in dispute.
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.
Petitioner seeks to have a negative entry removed from claimant's service record.
There is no controversy concerning the facts. The claimant, who has been an employe of the Carrier in excess of forty years, had suffered an injury on the job early in 1970. His claim thereon. was resolved by a successful action at law which resulted in his recovering a substantial sum of money from the Carrier in the Fall of 1969. At approximately that time, claimant had Complained of back pains and dizziness to his foreman and `vas instructed to secure a physical examination by a physician designated by the Carrier's Medical Examiner. He did not promptly comply with this directive, but eventually submitted to the medical review in November and December, 1968. He was then found to be physically qualified to continue his work as a machinist.
In the Spring of 1969, the claimant, with the assistance of his organization applied for and was granted the benefits of Rule 23 of the Controlling Agreement, which reads:
At the request of his Employer, claimant was again examined by a Carrier designated doctor in July, 1969. Again he was found to be sufficiently fit
to continue on the job he was performing. He was advised that he would be expected to submit to physical check-ups at six month intervals. Although he and his organization representative protested this requirement orally, no further steps were taken by him or his organization with reference thereto. In .January, 1970, Claimant's supervisor handed him a letter from Carrier's Superintendent of Shops at Huntington, West Virginia, ordering him to have a physical recheck by Carrier designated doctor prior to the end of that month. Claimant failed to honor this directive. Early in February, 1970, the Superintendent of Shops personally sought out claimant and asked him whether he had taken the recheck pursuant to the notice of January 13, 1970. Upon Teceiving a negative reply, he asked claimant whether he was going to comply with the order and received the following answer: "No, I am not going to take my physical. That's my stand."
An investigation was instituted by the Carrier to determine whether the claimant should be disciplined for refusal to adhere to instructions. Following a hearing, duly conducted on the property, and at which claimant was present and represented by several officials of his Organization, the Carrier imposed the penalty of an entry in his service record of his failure to comply with instructions.
The Petitioner charges that the Carrier was, by ordering frequent physical examinations of the claimant, seeking to harass him because of his successful law suit against it. It further claims that the notice of January 13, 1970 was vague and indefinite and therefore claimant properly disregarded it.
We do not consider that the contents of the January 13, 1970 notice, on which Petitioner laid great stress, is a meaningful factor. From January 13 to sometime early in February, claimant never indicated to anyone in supervision that he desired more specific arrangements made for his examination. In fact he clearly indicated defiance of the order in his uncontroverted statement to the Superintendent of Shops quoted hereinabove. It is quite apparent that claimant would not submit to the physical recheck regardless of what was in the January 13, 19 70 notice.
Did claimant's belief that he was being harassed warrant his refusal to comply with the Carrier's instructions? More than twenty-five years ago, one of the sates in the field of adjudication of labor-management disputes, Professor Harry Shuhnan, laid down the principle clearly applicable hereto in the following manner:
This concept eventually evolved into a short statement, namely, employes must comply with a management order, unless same would probably be hazardous to his health or safety, and then grieve if he considers the order improper or contrary to his contractual rights.
Although we might be sympathetic with an employe who had given so many years of service to his employer, we cannot afford the disruption of the basic concepts essential to proper and safe operation of the railroads which would stem from sustaining the views urged by the claimant and Petitioner herein.