Form 1 NATIONAL. RAILROAD ADJUSTMENT BOARD Award No- 7102
SECO14D DIVISION Docket No. 6768
2-MP-MA-'76
The Second Division consisted of the regular members and in
addition Referee Robert M. O'Brien when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated the controlling
agreement, particularly Rules 1 and 32 when they unjustly held
Machinist T. G. Williams out of service at North Little Rock,
Arkansas on June ll and 12,
1973.
2. That accordingly, the Missouri Pacific Railroad Company be
ordered
to compensate Machinist T. G. Williams eight
(8)
hours for June 11
and 12, 1973 at the applicable rate of pay and that he be paid
for all fringe benefits which may flow to arty other employee in
active service.
Findings:
The Second Division of the Adjustment Board, upon the whole record arid
all the evidence, finds that:
The carrier or carriers and the~employe or employer involved in this
dispute are respectively carrier and employs 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.
The facts giving rise to the instant claim are essentially uncontroverted.
On May
8,
1973, claimant entered the Missouri Pacific Employer' Hospital,
where he underwent an operation. On May 15, 1973 he was discharged from the
Hospital. On June
5,
Dr. Holt, the claimant's physician, gave him a release
to return to service on June 11. When claimant reported for service,
however, he was directed to report to Dr. Holmes, Carrier's Medical Officer
at Little Rock, at 10;30 A. M, the next day, June 12. Claimant was examined
by Dr. Holmes that day and found to be physically qualified to return to
service whereupon he returned to service the next day, June 13, 1973.
Form 1 Award No. 7102
Page 2 Docket No. 6768
2-MP-MA-'76
It is the position of the Organization that claimant was unjustly held
out of service on June 11 and 12, 1973. No where in the applicable collective
bargaining agreement, they argue, is there a requirement that employees be
examined by Carrier's Chief Medical Officer before being allowed to return
to service following illness or injury. Moreover, they contend that when
Carrier required claimant to he so examined, they unilaterally changed the
procedure that had heretofore been in effect. Presumably that procedure
has been for the Carrier to accept the medical opinion of physicians at the
Missouri Pacific Employees Hospital.
While there admittedly is no contractual requirement that employees be
examined by Carrier's Chief Medical, Officer prior to being allowed to return
to service, it is axiomatic that such a requirement is an inherent right of
the Carrier. (cf., for example, Awards
6278, 6039
of the Second Division).
Absent a rule to the contrary, Carrier is not obligated to accept the opinion,
of the employee's personal physician. Yet, it is equally true that where
no rule exists stating a specific time limit in which such an examination
must be given by Carrier's Medical Officer, it is well established that
Carrier has the obligation to render the examination within a reasonable
time (cf. Second Division Awards
6629
and
6363).
In the instant claim, Carrier did, in fact, accord claimant a physical
examination within a reasonable time. He returned to the property on
June 11, arrangements were made for the examination the next morning, June
12,
and claimant was allowed to be returned to service on June 13. It is
obvious that no undue delay occured in having claimant examined and subsequently,
returned to service. He was thus not unjustly held out of service on June
11 and 12,
1973
as alleged by the Organization.
Furthermore, although the Organization strenuously argues that timely
notice was not given that the procedure relative to medical examinations
was changed, the evidence does not support this charge. In
196+,
Carrier
cancelled the then existing contract with the Missouri Pacific Employees
Hospital and required that henceforth the Company Medical Officer would
render the medical opinion respecting an employee's ability to perform
service in a competent and safe manner. It is readily apparent that the
organization had actual or constructive notice that the procedure had been
changed. They cannot complain nine years later that they were genuinely
surprised by the change in procedure.
Based on the foregoing, this Board finds that claimant was not unjustly
held out of service on June 11 and
12, 1973·
Accordingly, the claim must.
be denied.
A W A R D
Claim denied.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 7102
Docket No.
6768
2-MP-MA-'76
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By ~`~ __.-__
marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 23rd day of July,
1976.