Form
1 NATIONAL
RAILL AD
ADJUSTMENT BOARD
Award
No.
7033
SECOND DIVISION
Docket No. 6807
2-SCL-CM-1 76
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation
No.
42, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( Carmen
(
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
1. That the Seaboard Coast Line Railroad Company violated terms of
the controlling agreement when they held Carman Dewey R. Bazzell
out of service May 29, 1972 until January 15, 1973.
2. That the Seaboard Coast Line Railroad Company be ordered to
compensate Carman Dewey R. Bazzell eight (8) hours each work
day, forty (40) hours each week, at pro rata rate, all overtime
he would have made, and that he be made whole for vacation
rights he may have lost and all other benefits which accrue
a ..
to his position.
i
' `---' 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.
Parties to said dispute waived right of appearance at hearing thereon.
This case involves a physical disqualification by Carrier of Claimant:
and the latter's challenge thereto. The principles regarding physical disqualifications cases have been well established in a plethora of earlier Awards.
As we read the record, none of the established teachings of these earlier
Awards is contested herein. Thus, the parties both recognize that 1) Carrier
has the right to determine physical fitness of an employee 2) The findings
of Carrier are not absolute and, if challenged, Carrier has the burden of
proof on physical disqualification and 3) If Carrier holds Claimant physically
disqualified and holds him out of service it assumes the risk of fallibility.
See Awards 5847 and 5943.
Form 1
Award No. 7033
Page 3 Docket No. 680'1
2-SCL-CM-'76
substitute our lay judgement for that of a medical doctor when we fulfill
our function of inquiring into the evidentiary basis for such a decision. The
plain fact is that there was no medical evidence at all adduced on this
record upon which the June 26, 1972 decision to disqualify was or could
have been based. Indeed, such evidence as was available all pointed in the
other direction. In the facts shown on this record Carrier has failed to carry
the burden of proof on this physical disqualification and must suffer the
consequences of such failure.
In sustaining the claim we do so for the period of June 26, 1972
through December 21, 1972. We find no dilatory tactics or unreasonable delay
in Carrier exercizing its right to have Claimant originally examined by
Dr. Butler or in reviewing those findings. And any delay between December
21, 1972 and his ultimate return to service were occasioned by Claimant's
request to postpone the re-examination.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
w
Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of April, 1976.