Award No. 6278 Docket No. 6120 2-SCL-CM '72
The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
SYSTEM FEDERATION NO. 42, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: Mr. B. C. Quarterman, Carman (hereinafter referred to as Claimant), is employed by the Seaboard Coast Line Railroad Company (hereinafter referred to as Carrier) at Columbus, Georgia as a car inspector and repairman, with rest days Thursday and Friday. He holds seniority rights under provisions of Rule No. 15 of the agreement with seniority date of 12-24-1963, however, be has been continuously employed by the Carrier sinea 3-27-1951.
The Claimant injured his leg on September 27, 1969 while trying to start a motorcycle. He visited his personal physician, Mr. George S. Whatley, M.D., on the above date. It was discovered the Claimant had fracture lateral tibia plateau and was hospitalized. A plaster cast was placed on his leg and on October 3, 1969, he had recovered sufficiently= to be released from the hospital. The Claimant's recovery was excellent and on December 12, 1969, Dr. Whatley released him with a statement addressed to the Carrier's Medical Department that in his opinion the Ciairnant is sufficiently recovered to safely resume his usual duties.
The Claimant reported for duty on December 13, 1969 and presented the Carrier with a statement from Dr. Whatley which gave diagnosis, brief his-
is cited by the Claimant's representatives which would preclude th,_- Carrier's right to have this Claimant examined by its company doctor.
The Organization has alleged that rules wet violated and that the handling given in this matter was unreasonable. However, they have presented no evidence to substantiat·3 their allegations. Carrier has clearly shown that rules cited by the Organization are not applicable, therefore, no violation c·,isted. It certainly is not unreasonable for Carrier to be certain that the ·-mploye is physically able to return to duty, particularly since it is as much for the employe's benefit as if, is his fellow employes' and the Carrier's.
The Organization has not sustained its burden of proof. Numerous awards of all Divisions of the NRAB have upheld that the party making the allegations have the burden of proving them. Cited, among them, are Third Division Awards 17833 (SCL vs BRAC) and 16450.
It is pointed out, however, that it is impossible for tah2 Organization to sustain its burden of proof in this claim, since there are no agreement violations.
Carrier reo1firms its position that there has been no violation of the Agroement in this instance, and respectfully requests that your Board deny this claim in its entirety.
FINDINGS: Tree Second Division of the Adjustment Board, upon the whole recurd and all the evidence, finds that:
The carrier or caniers ar_d the employe or employee involved in this dispute are respectively carrier and employe within the meaning of the Failway Labor Act as approved June 21, 1934.
This Division of the Adju:Ament Board has jurisdiction over the dispute :evolved herein.
The facts in this case are that Claimant sustained an off-duty injury to his l,g on September 27, 1969, while trying to start a motorcycle. He visited his personal Physician on that date and was hospitalized with a fracture. A plaster cast was placed on his leg and on October 3, 1969, he was released from the hospital . On December 12, 1969, his personal Physician released him with a statement addressed to Carrier's medical department that in his opinion Claimant was sufficiently recovered to safely resume his normal duties.
Claimant i·3ported for duty on December lo, 1969 and presented Carrier with a statement from his personal Physician which gave diagnosis, brief history, duration of care, treatment, prognosis and the above referred to state-
rent. Carrier would not permit, claimant to resum0 his duties. On December 17, 1969, his Supervisor ordered Claimant to report to the Carrier's local Doctor for an examination. It was December 22, 1969 before Carrier's local Doctor -examined claimant, the results of which were approval for normal resumption of duties.
Claimant was still not allowed to return to duty and on December 26, 1969, Carrier's Chief Medical Officer wrote to Claimant advising him that he had received form Med-2 r·:_-port of physical examination performed by the Company Physician and on the basis of the report felt it necessary that Claimant report to his office located in Jacksonville, Florida on January 2, 1970 at 8:30 A. M. Claimant complied with this request and aftar being examined, was returned to cluty on January 3, 1970.
Claimant all,?Yes a violation of Rules 15 anal 32 and contends that Carrier's actions were arbitrary and that he received unjust treatmcnt. He holds seniority rights to service under Rule 15 and because of his seniority standing, he held rights to Nvork his regular assignment unless disqualified for service by discipline administered under Rule 32 or was disqualifi-ad for service because of physical reasons.
The claim itself as submitted is for eight (8) hours pro rata rate of his assigned position each day, December 13, 14, 15, 23, 24, 27, 28, 29, 30 and 31, 1969 and time and one half rate for January 1, 1970, and 604 mils at ten (10) cents per mile and re-imbursement of $4.00 for hotel room rent and four meals at $1.50 each.
There is no question that Carrier has the inherent right to require its employes to submit themselves for- physical examination before returning them to duty. However, Carrier does have the obligation to render the examination within a reasonable time. From the factual situation as recounted, we think Carrier took an unreasonable length of time in this case. The physical examination should have been performed within five (5) days. (See Award 5537). We will therefore approve compensation in excess of 5 days, that is, for December 27, 28, 29, 30, and 31, 1969 and time and one half for January 1, 1970. We decline that portion of the claim for expanses, since there is no substantiation for them in this record.