Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7333
SECOND DIVISION Docket No.
6+03
2-LV-CM-'77
The Second Division consisted of the regular members and in
addition Referee Edmund W. Schedler, Jr., when award was rendered.
( System Federation No. 100, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Consolidated Rail Corporation
( (formerly Lehigh Valley Railroad Company)
/Dispute: Claim of Employes:
That the Carrier violated the controlling agreement when they
arbitrarily removed Cayman Raymond Kindt from service effective
September 30,
1971.
Buffalo, New York Car Department.
That the Carrier be ordered to return Caiman Raymond Kindt to
service with seniority unimpaired, compensate him at his applicable
rate of pay for all work days lost, payments be made on premiums for
hospital, surgical and medical benefits, and Group Life Insurance.
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 waived right of appearance at~hearing thereon.
This clarification of Award No.
6561
of the Second Division of the
National Railroad Adjustment Board was order by the United States District
Court for the Eastern District of Pennsylvania in Civil Action No.
74 - 1+56
on May
18, 1976.
The facts leading up to the MEMORANDUM
Alms
ORDER were not
disputed. On July
23, 1973
the National Railroad Adjustment Board by Order
of the Second Division awarded Cayman Raymond Kindt:
(1) Restore the Claimant to service with seniority rights unimpaired.
(2)
Make the Claimant whole fox all vacation rights.
(3)
Pay premiums for hospital, surgical, medical benefits and group
life
insurance.
t
Form 1 Award No. 7333
Page 2 Docket No. 6+03 rrr'
2-LV-CM-'77
(4)
Restore all pay lost from September 29, 1971 until restored to
service less any other wages made on any other job during this
period.
and the Board issued an order to make Award No. 6561 effective on or before
August 23, 1973. On August 6, 1973 the Carriers filed a dissent to Award
No. 6561.
. . _ __The
C.axxier.made arrangements for Caiman Kindt to take a physical
examination on October 23, 1973 and on December
4,
1973. Caiman Kindt has
refused to take a physical examination. On June 11, 197 the Carrier filed
with the United States District Court fox the Eastern District of Pennsylvania
a petition fox a ,review of Award 6561 and the order of the National Railroad
Adjustment Board. On May 18, 1976 the Court, on cross motions of the parties
fox summary judgement, issued a MEMORANDUM AND ORDER and the pertinent
language for the Board to consider is found on page 6 of the ORDER, to wit:
"The order of the Board as to a reinstatement physical and as
to the consequences of a refusal to submit to such a physical
is too vague to be considered a final award capable of judicial
enforcement. Order of Railroad Con. & Brake. v. Erie Lackawanna
R. Co., 302 F. Supp. 119 (N.D. Ohio 19 9 ; Brotherhood of
Railroad Signal. v. Chicago, M.St. P. &, P. R. Co., 2 F. Supp.
OZ N.D. Ill. 19 ; 5 U.S.C. 153 m , W,
(q).
The award
before this court is not final and is incapable of enforcement,
because it is inappropriate for this court to determine what
effect the respondent's refusal to submit to a physical would
have on the award. Courts have held that Board is the proper
forum fox such clarifications of awards. Brotherhood of
Railroad Signalmen y. Southern Ry. Co.,
380
F. 2d 59 th
Cir. 19 7 ; Order of Railroad Con. & Brake. v. Erie Lackawanna
R. Co., supra. Therefore, under the fact situation present in
this case, the court will order the enforcement of the award
up to the time of the reinstatement physical refusal and will
remand to the Board fox a clarification of the effect of
respondent's refusal to submit to a physical examination on the
remainder of the award."
A panel discussion was held in Chicago on May 19, 1977 and the question
at issue before the Board was whether or not the Carrier has the right to
require Kindt to take a physical examination before returning to work under
an Order frown this Board. If the answer to the question at issue is "yes",
what will be the remedy where the claimant refused to take a physical
examination. Those questions are in accordance with the MEMORANDUM AND
ORDER.
The Carrier's position was that they did have the right to require a
physical examination before Kindt returned to work. The Carrier submitted
numerous awards to support their position and we will discuss those awards.
Form 1 Award No.
7333
Page
3
Docket No.
6403
2-LV-CM-177
1. In Award No.
8535
(Third Division) this Board held that where the
Agreement is silent on the matter of physical examinations and
the Claimant had been absent due to illness for extended periods
of time, the Carrier's decision to require a physical examination
before the Claimant returned to work was entirely reasonable.
This award is distinguishable from Award No.
6561
because Kindt
was examined by the Carrier's physician on August
16, 1977-
before
he was withheld from service on September
29, 1971.
2. In Awaad
loo. 7033
(Second Division) Carman D. R. Bazzell was
out of :~exvice from January
24, 1972
to June
7, 1972
for herniated
lumbar disc surgery. He was examined by the Carrier's physician
and disqualified from returning to work on June
26, 1972
by the
Carrier's Chief Medical Officer. Award. No.
7033
is similar to
Award No.
6561
in that this Board made a determination in a
medical controversy. The back pay damages were awarded from
the date June
26, 1972
which was inmediately after the Carrier's
Medical Officer received a report of the Claimant's physical
examination and there was no unreasonable delay in the Carrier's
review of the Claimant's medical record.
3.
Award No.
6880
(Second Division) has a striking similarity to
Award No.
6561.
In Award No.
6880
the medical controversy was
resolved by a panel using the Claimant's physician, the Carrier's
Medical Director, and a neutral physician. In sustaining the
claim this Board ordered the. Carrier to pay the Claimant from
the date he was removed from service to the date he returned to
service (August
22, 1972
to April
19, 1973)
less any outside
earnings. The material difference between Award No.
6880
and
Award No.
6,561
was that the Board did not have the benefit of the
medical opinion of a neutral doctor in
6561.
4.
Award No.
6851
was a disciplinary grievance for use of abusive
language and unauthorized leaving of work. No medical controversy
was involved and this award is clearly distinguishable from
No.
6561.
5.
In Award No.
6850
(Second Division) Cayman Gourdin was off work
from August 1 to August
7
due to high blood pressure and not.
feeling well. Carrier required
3
days of medical examinations
before returning Claimant to work. The claim was that
3
days
of medical testing was arbitrary and unreasonable. This award
is clearly distimguishable- froon Award No.
6561»
6.
In Award No.
6758
Caiman Mullins was held out of service from
April
25, 1972
to September
18, 1972
for medical reasons. On
July
21, 1972
the Carrier's Chief Surgeon received a certificate
from a qualified physician giving the Claimant a "clean bill of
^ r
Form 1 Award No.
7333
Page
4
Docket No.
6+03 "'
2-ZV-CM-'77
health." The essence of Award No.
6758
was the delay in returning
the Claimant to work between July
21
and September
18.
In Award
No.
6758
it was unnecessary fox this Board to resolve a controversy
over fitness - the award was simply a matter of determining damages
due to a delay in returning to work. Award No.
6758
is distinguishable
from Award No.
6561.
7.
In Award No.
68+2
Electrician K. R. Osborn was absent from work
due to illness from November
20, 1972
to January
2, 1973.
His
return to work was delayed an additional
16
days for the Carrier
to verify his fitness for service. This award is similar to
Award No.
6758.
8.
In Award No.
670+
(Second Division) Electrician E. H. Eaton was
out of service frown January
8, 1972
to March 11,
1972.
He returned
to work on March
13
with a medical release from his physician but
his start to work date was delayed until March
22
to allow the
Carrier's Chief Medical Officer to review the Claimant's record.
In Award No.
6701+
there was no medical controversy over the
Claimant's fitness to return to work and this award is distinguishable
from Award No.
6561.
g. In Award No.
6039
(Second Division) the Claimant was withheld
,,r,r
from service in the wrecking crew because he stuttered. This
Board ruled that the Claimant had an impairment that could be
detrimental to the safety of the wrecking crew and Award No.
6038
is distinguishable from Award No.
6561
on the merits.
10. In Award No.
x+099
the Claimant was held out of service for his
failure to pass the Company's physical examination. Claimant
had a "disc back injury" operation in November
1956;
and, after
a physical examination September
15, 1858
the Carrier's medical
officer deemed the Claimant was unfit to return to work. The
record was devoid of any contrary medical opinion, hence Award.
No.
4099
is distinguishable from Award No.
6561.
11. In Award No.
6363
Caiman Olsen was off work for medical reasons
from July
23, 1970
to August
5, 1970
and he returned to work
with a medical release on August
5.
Carrier withheld Olsen
from service until he was examined by the Carrier's Chief Surgeon
and the Chief Surgeon authorized the Claimant to return to .work
on August
lg, 1970.
Award No.
6363
was a controversy over the
delay in returning the Claimant to irk and this award was similar
to Award No.
6561.
12.
In Award No.
6700
(Second Division) Caiman Pettet was held out
of service after he returned to work in April
1971
from a knee
operation. He did not get an unconditional release from his _
physician until July
13, 1871
and he returned to work on July
27,
1971
after the Carrier's physician found him qualified. Award
Form 1 Award No. 7333
Page 5 Docket No. 63+03
2-LV-CM.'77
No. 6700 is similar to Award No. 6363 and is distinguishable
from Award No. 6561.
13. In Award No. 6269 Cayman Lord injured his ankle while hunting
and was absent from work one or two days to recover. He was
required to furnish a medical release before returning to work
and this cost Lord an additional day off work. Award No. 6269
is obviously distinguishable from Award No. 6561 where Cayman
Kindt was withdrawn from the work force while at work.
' 14.
In Award No.
20TT4
(Third Division) the Claimant was removed
from service for medical reasons. In denying the claim this Board
ruled that the Organization failed to prove the Claimant's medical
fitness. -'
15. In Award No. 20344 (Third Division) the Claimant was withheld
from service from December 6, 1971 to February 18, 1972 to allow
the Carrier to review the Claimant's medical record. This claim
was that the Claimant had been
withheld from
service too long.
On the merits, the Board held that where the Claimant had taken
severe, potentially self destructive steps and been subjected to
lengthy hospitalization the Carrier did not violate the Agreement
in delaying the Claimant's return to work. Award No. 20-*4, is
distinguishable from Award No. 6561.
16. In Award No. 14389 (Third Division) the Claimant refused to sign
the medical forms. The Carriers right to require a physical
examination was not at-issue. The Claimant's signature was
necessary to properly identify the individual taking the physical
examination. Award No. 1+389 is distinguishable from Award
No. 6561.
17. In Award No. 109 20 (Third Division) the Claimant requested 30
days of sick leave which was extended to August 20, 1960. Claimant
was on vacation from August 22 to September
2,
1960. An investiga
tion into charges made by employees against the Claimant was
held on August 24,
1960.
Claimant was not present at the investiga
tion, but the District Chairman and the Claimant's spouse were
present. From the investigation the employer concluded that
Claimant must take a physical examination before returning to mock.
Claimant was advised of this requirement on September 2, 1960.
Claimant asked for a 90 day sick leave to end December 5, 1960.
She furnished a medical statement from her physician to resume
work on that date and she refused to take an examination by the
employer's physician. The Organization contended the employer
could not require the Claimant to submit to a physical. The
record was devoid of any information the Claimant was examined by
the employer's physician subsequent to illness. Clearly, Award
10920 is distinguishable from, Award 6561 in that in Award 6561
Form 1 Award No.
7333 "'r''"
Page
6
Docket No.
6+03
2-LV-CM-177
Kindt was examined by the Carrier's physician on August
16,
1971
prior to being withheld from service.
18. In Award No.
14249
(Third Division) Claimant sued the Carrier for
back injuries; suit was settled fox
$3500
on November
29, 1962;
and Claimant had been withheld from service. On December
27, 1962
the Claimant initiated a complaint to return to work. In denying
the claim, the Board found that the Claimant had already had his
day in court and there must be an end to disputes. The merits of
Award No.
14249
are distinguishable from Award No.
6561.
19.
In Award
119 09
(Third Division) the Claimant's vision did not
meet the Carrier's minimum requirements. This award is
distinguishable from Award No.
6561.
20.
In Award
2081+5
(Third Division) the Claimant did not avail
himself to a board of physicians to rule on his fitness. This
award is distinguishable frcun Award No.
6561.
This Board also reviewed Award No.
198 06
(Third Division), Award No.
19905
(Third Division, Award
193 28
(Third Division), Award No.
18710
(Third
Division). Award No.
18236
(Third Division), Award No.
15367
(Third Division_,r_f
Award No.
116+6
(Third Division) and in the opinion of a majority of this
Board those awards were submitted to encourage this Board to reconsider
the merits of Award No.
6561.
We refuse to reconsider the merits.
Award No.
6561
resolved the controversy over the medical fitness of
Carman Raymond Kindt to return to service and that award found that Kindt
was physically fit to return to service. Award No.
6561
neither intended
fox Kindt to take a physical nor did the award require Kindt to take
return to work physical. Kindt had a physical examination by the Carrier's
physician
4+
days before he was withheld from service on September
29, 1971
and there was no evidence that his condition had changed by October
23, 1973
when the Carrier ordered him to report fox a return to work physical. The
answer to the question at issue is "no, the Carrier did not have the right
to require Carmen Raymond Kindt to take a physical examination before
returning to work under an Order frown this Board" and the Carrier will
abide by the Order of the Board dated July
23, 1973,
to wit:
(1) Restore the Claimant to service with seniority rights unimpaired.
(2)
Make the Claimant whole for all vacation rights.
(3) Pay premiums fox hospital, surgical, medical benefits, and
group life insurance.
(4)
Restore all pay lost from September
29, 1971
until restored ,,%V
to service less any other wages made on any other job during
this period.
Foam 1 Award No.
7333
Page 7 Docket No.
6+03 ,
2-LV-CM-177
A W A R
D
Claim sustained in
accordance with
Findings.
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
. t~
By ~ ~.J
~osemarie Branch - Administrative Assistant
Dated( at Chicago, Illinois, this 15th day of July, 1977.
mw