(Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6347
SECOND DIVISION Docket No. 6170
2-C&NW-MA -'72
3'he Second Division consisted of the regular members and in
addition Referee Robert G. Williams when award was rendered.
( System Federation No. 12, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Machinists)
( Chicago and North Western Railway Company
Dispute: Claim of Employes:
1. The Chicago and North Western Railroad violated the effective agreement
by depriving Machinist Nick Sagalewich of 56 working days by removing
him from service following a company accident.
2. The above named railroad violated Rule #35, Rule #55 and letter of
understanding of
the effective Agreement.
3. (a) That accordingly,'the Carrier be ordered to reimburse above
employe for the 56 days he was held out of service and (b) That the
Carrier be made to comply with the Agreement.
Cndings:
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.
Parties to said dispute waived. right of appearance at hearing thereon.
On
September 2,
1969,
the claimant sustained an
injury
while on duty
and for a
period of
time thereafter he received heat treatments for a ruptured
muscle. On or about January 28, the claimant filed suit against the Carrier for
damages on account of these personal injuries.
The doctor examined the claimant on December
17, 1969,
and again on
March
9, 1970,
and
reported he was able to do light work. During this time the
claimant remained on the Carrier's payroll, but did very little or no work and
:d
often departed for home shortly after reporting for work. On March
5, 1970,
the
laimant was informed by his supervisor that he would not be carried on the payroll
t.nd that his pay would be taken care
of
by the Carrier's claim agent.
Form 1
Award No.
6347
Page 2 _ Docket No.
6170
- 2-C&NW MA-'72
The claimant contacted the Carrier's Claim Agent who was to file a notice
of sickness claim with the Railroad Retirement Board. At this time the claimant
also arranged to take his accrued vacation until April
3, 1970.
On May
5, 1970,
the claimant's General Chairman ascertained that the Railroad Retirement Board had
not received a notice of sickness claim. The General Chairman then promptly assisted
the claimant to file necessary forms with the Board. When the Carrier's Medical
Department received forms for describing the claimant's medical condition, the Medical
Officer advised that the claimant should be working. On May 21, 1970, the General
Chairman was informed of this latest medical opinion and he immediately notified the
claimant that he should return to work. With this recommendation the claimant
returned to work on May 25, 1970.
On June
9,
1970, the General Chairman asked the Carrier's Shop Superintendent
what was being done to secure the claimant's back pay. The Shop Superintendent
responded by letter stating that nothing was being done to secure any back pay pending
the outcome of the claimant's lawsuit against the Carrier.
Rule 55 of the agreement provides that able employes shall be permitted
to return to work. On two different occasions a doctor stated the claimant was able
to return to light duty work. The claimant proceeded to work on a limited basis for
some months. The Carrier's Supervisor then determined that the claimant should be
dropped from the payroll because he was unable to work and informed. him that he had
a sickness claim to be processed by the Claims Agent. When the claimant attempted
to process his claim the Carrier's doctor pronounced the claimant able to work.
Later, during the processing of this case on the property the Carrier's Superintendent
indicated back pay compensation depended on the claimant's lawsuit. In essence this
case involved a conflict between the doctor's opinion that the claimant was able to
work and supervisory opinions that he was unable to work. Doctors authorized the
claimant to work and supervisors prohibited him from working. .
'The claimant was the man in the middle of a conflict between two separate
departments in the Carrier's organization. Since the Carrier finally decided to
put the claimant back to work, then the internal conflict was resolved in favor of the
doctor's opinion and authority. It was determined that the claimant was able to work.
Under Rule 55 able employes must be permitted to work
so
the Carrier violated the
agreement when the claimant was dropped from the payroll.
A WA R D
Claim sustained..
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ,
Executive Secretary
Dated at Chicago, Illinois, this 7th day of July, 1972.
I