Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7303
SECOND DIVISION Docket No. 711+
2-MKT-EW-'77
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
8,
Railway Employes'
( Department, A. F of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Missouri-Kansas-Texas Railroad Company
Dispute: Claim of Employes:
1. That the Missouri-Kansas-Texas Railroad withheld Electrician
Apprentice, Mr. Thomas E. Shields from service without just and
sufficient cause.
2. That accordingly the Missouri-Kansas-Texas Railroad be ordered to
pay Mr. Thomas E. Shields eight
(8)
hours each day, five days per
week, commencing with July 1, 1975 until such time as he is returned
to his former position with this Railroad.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
The claimant, an Electrician Apprentice, was employed by the Carrier on
June 26, 1973. He sustained an off-duty injury on September 23, 1973, which
injury resulted in a mid-leg amputation of his left leg.
Claimant remained out of work until December 20, 197+, at which tine he
reported to a Carrier doctor for examination. On January 23, 1975, he received
a letter from the Carrier's Assistant Vice-President, Mechanical, stating in
part:
"Regret to advise results of this physical examination
developed you are not qualified to return to the service
of the Missouri-Kansas-Texas Railroad account left midleg
amputation."
Foam 1 Award No. 7303
Page 2 D2ocket T-NE~o-
. t
~114
Our review of the record discloses an untimely presentation of the claim
which, under our previous decisions and the clear language of Rule 27(b)
of the agreement, must be dispositive of this dispute. However, in viewing
the merits of the matter, we find that it is uncontroverted that Claimant
does, in fact, have a mid-leg amputation of his left leg. It is also
uncontroverted that Carrier's Medical Director, after reviewing Claimant's
medical history and condition, made a determination that, notwithstanding
the fact Claimant wore an artificial limb, such a condition did not meet
Carrier's minimum physical standards fox Electrician Apprentices. We find
this to be a reasonable standard, and, in line with numerous previous
decisions of this Board, it is not within our province to alter or disturb
reasonable medical standards established by a Carrier. Further, considering
there was no dispute between Claimant's physicians and Carrier's Medical
Director that Mr. Shields did have an amputated left leg, there is no basis
for us to order an examination by a neutral physician to determine Claimant's
physical condition.
On February 13, 1975, the Organization wrote to the Manager of Personnel
for the Carrier (not the proper officer for filing an initial claim)
acknowledging that the claimant "would not be permitted to return to work"
because of the leg amputation. On February 20, the Carrier replied, again
clearly stating that "it was necessary to disqualify" the claimant "for
service with this Company as an Electrician Apprentice". The letter went
on to state that the Carrier had investigated, without success, other
employment for which the claimant might be qualified.
It was not until May 26, 1975 that the Organization filed a claim on the
claimant's behalf with the proper officer of the Carrier. The claim asked
for reinstatement .as an Electrician Apprentice and included a time claim (to
begin at a future date, an issue
which need
not be further discussed here).
Under the operative Agreement, Rule 27(b) states in part:
"All claims or grievances must be presented in writing
by or on behalf of the employe involved, to the officer
of the Carrier authorized to receive same
...
within
sixty (60) days from the date of the occurrence on which
the claim or grievance is based."
Whether the Carrier's letter of January 23, 1975, or the Carrier's
further letter of February 20, 1975, is used as a starting point, the claim
filed on May 26, 1975, is well beyond the 60-day time limit specified in
Rule 27 (b). In the view of the Board, February 20, 1975, is the latest date
which can be considered as the "date of the occurrence on which the claim or
grievance is based . ..."
Form 1
Page 3
Award No. 7303
Docket No. 711+
2-MKT-Ew-'77
The Organization states that the matter is a continuing one, making a
claim timely at any point during the claimant's being withheld from return to
service. Many past awards have held to the contrary. The claimant and the
Organization knew on a specific date that the Carrier had determined that the
claimant was disqualified from return to work. While a possible continuing
liability may have been running, the disqualification itself was the
"occurrence" requiring challenge within the 60-day period. See especially
Award No. 685+ (Twomey) and Award No. 6987 (Twomey).
A W A R D
Claim denied and dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By J1./
s arie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 10th day of June, 1977.
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