Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7134
Docket No. 6945
2-MP-CM-176
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
( System Federation #2, Railway Employee'
( Department, A.F.L.-C.I.O.
Parties to Dispute:
( (Carmen)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Emploves:
1. That unLcr the current Agreement Carman T. J. Rodriquez
is unjustly being held out of service of the Missouri
Pacific Railroad Company from May 26, 1974.
2. That accordingly, the
Carrier be ordered to reimburse
` this employs for all time lost from Nay 26, 1974 until
his return to service of the Missouri Pacific Railroad
Company.
Findings:
The Second Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The Carrier or carriers and the employs or employee involved in
this dispute are respectively carrier and employs within the mewing 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.
Claimant underwent surgery for the replacement of the aortic
valve. In January 1974 (after recovering from surgery), he was placed
on Coumadin therapy (an anti-coagulant drug) and he requested a return
to work. After he was given a required physical examination by a
Carrier physician, Claimant was disqualified from further employment
by Carrier's Chief Medical Officer, due to the serious nature of the
surgery and the continuation of the Coumadin therapy.
Claimant's physician, Leahy,, advised Carrier on May 26, 1974,
of his recommendation that Claimant be re-employed. Supplemental
letters were also submitted to Carrier by a Thoracic and Cardiovascular Surgeon and a Cardiologist, assuring Carrier of Claimant's
improved
physical health.
Form 1 Award No. 7134
Paige 2 Docket No. 6945
2-MP-CM-t
76
We feel that the major crux of this dispute is succinctly
stated in the Director of Labor Relations' letter of September 26, 1974:
"There is no disagreement as to claimant's
medical condition; however, Carrier's Chief
Medical Officer, who is charged with determining
finally whether or not employes are qualified to
perform service, has found that claimant's medical
condition does not permit his return to service."
The Orgs;nitonasserts that Carrier has unjustly held
Claimant out of service, maintaining that three physicians (two of
whom are cardiovascular specialists) clearly state that he was qualified
to return to work.
Carriers how®verp disputes Claimant's position, contending
that no violation of the Agreement was raised on the property. The
Carrier avers that it assumes significant liability for the actions
of its employees and consequently it must have sole authority in
making determinations regarding re-employment. Carrier cites the
seriousness of the Claimant's condition, and notes that the possibility of hemorrhaging is greatly increased as a result of the
Coumadin therapy. This, Carrier states, involves too severe a
risk to permit re-employment. It is apparent that Carrier's position herein is consistent with the Guide For Use of Chief Medical
Officers in the Application of Medical Standards by Occupational
Profile as Recommended by the Committee ewv Medical Standards and
Apyr2y2d by the Committee of Direction Medical Section - Associa a, o£ American Railroads, inasmuch as the AAR recommends that
Carriers far &om service persons who have vaIvular prosthesis or
who are on Coumadin therapy.
Obviously, a Carrier may not unilaterally adopt arbitrary
standards of medical conditions. But, a Carriers' Chief Medical
Officer is not precluded from a consideration of AAR recommendations
in considering his resolution of a giyen~medical concern.
The employees claim that Carrier has not provided substantial
grounds to justify its action. They maintain that Claimant's physicians
must have~known of the heavy work requirements involved in his work
position prior to their recommendations, and they cite, as authority,
Award 6716.
Award 6716, according to Carrier, is "a compound of errors"
and totally irrelevant to the instant case.- That Award involved the ability
of an electrician to perform his duties adequately. Here, Carrier does
nqt dispute the Claimant's improved health, bat simply maintains that
the three doctors' opinions do not justify a waiver of Carrier's medical
position, as dictated by Claimant's condition.
Form 1 Award No. 7134
Page 3 Docket No. 694;
2-MP-CM-'76
Several Awards cited by Carrier
reiterate
the established
principle that Carrier has authority to provide medical standards.
This Board is inclined to
find that Carrier's position was
based
upon valid considerations. In the instant case, although a careful scrutiny of the letters from the Claimant's physicians indicate
that
his
health has substantially improved, it
also clearly demonstrates
that an injury
to him would pose a greater risk
than
to the
average man. In this regard, we have considered the May 26, 1976,
letter from Claimant's physician:
"Because Luke has a prosthetic valve in his
heart, it is necessary for him to take Coumetdi,n
to prevent the blood from clotting on the valve.
Although this
does increase his blee,dip,e tendencv
end bruising potential, it should not prevent him
'from working. He could tolerate a minor injury
or laceration ~ith-little more risk than his
fellow workers.' (underaGOring supplied)
It is well established that this Board is not empowered to
impose its
own
individual opinions, but we must abide the dictates of
previous Awards which clearly indicate the paramount right of a Carrier
to establish its health standards; which should not be disturbed, absent
some showing of arbitrary rules or improper application. Accordingly,
this claim is denied.
A WA R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary .
National Railroad Adjustment Board
BY:
Ro emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 21st day of September, 1976.