Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7851
SECOND DIVISION Docket No.
7579
2-SF'f-CM-'
79
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 114, Railway Employes'
( Department, A. F. of L. - C. 1.0.
Parties to Dispute: ( (Carmen)
(
Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current agreement former Carman M. A. Andrade,
hereinafter referred to as the Claimant, was unjustly deprived of
his service rights and compensation when he was improperly withheld
from. service from June
25, 1976
when he was recalled from furlough
until December
7, 1976
where he was allowed to return to service.
2.
That the Southern Pacific Transportation Company, hereinafter
referred to as the Carrier, be ordered to compensate the Claimant
for all time lost from August
g, 1976,
the date that another
employee with a
50
pound weight restriction was allowed to return
to service, until December
7, 1976
when the claimant was restored
to service. Fux'the,rnaoxe, that the Claimant be made whole for all
fringe benefits that would have been due him during this period
had he not been unjustly and capriciously withheld from service.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier ox carriers and the employe ox 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.
Par-ties to said dispute waived right of appearance at hearing thereon.
Claimants after work related injuries, had been off work on disability.
On July
18,.1975
he was cleared for full return to work after examination by
a Carrier physician. He was notified that he was on furloughed status and
that he was medically cleared to return to work when work was available by
letter dated September 2,
1975
from Carrier's Plant Manager.
s
Form 1' Award No, 7$51
Page 2 - Docket No. 7579
2-SPT-CM-'79
On June 25, 1976, Claimant was recalled to service based on his seniority
(he had twelve years of service). At that time, pursuant to Carrier's
policies since he had not worked for over six months, Claimant was required
to report for a physical examination to a Company physician. He re-ported for
such -physical and was examined by a Dr. Clancy (previously he had been
examined and treated by Dr. McArthur, another Company doctor). According
to his unrebutted statement, Dr. Clancy told him verbally that there was
nothing out of the ordinary but that his medical records would have to be
forwarded for review by Carrier's Chief Surgeon. Subsequently, Claimant was
informed by the Plant Manager that. the Chief Surgeon had placed a restriction
prohibiting him from working any position which required lifting of fifty
pounds or more. No reason was given for this restriction. Carrier indicated
that there was no light work position available at that time for which
Claimant had sufficient seniority. Claimant was then withheld from service.
Claimant contacted Dr. McArthur in an effort to find the reasons for
the restriction, but could not find out. After continued pressure, Dr.
McArthur arranged for an examination by a Dr. Herzog, which took place on
November 3, 1976 and those findings were relayed to Carrier's Chief Surgeon.
Subsequently the restriction was removed and Claimant was returned to duty on
December 7 1976. The record also indicates that during the time Claimant
was withheld from work negotiations were being progressed in settlement of
his four .personal injury claims against Carrier. Fu,.'^thex, the record indicates
that subsequent to the restriction being placed on his work, Claimant was
denied disability compensation, as being in good health.
The crux of this dispute is whether or not Carrier properly placed a
restriction on Claimant's ability to work and the consequences of that
action. There is no doubt but that Carrier had the right to require a physical
examination of an em .ploye, such as Claimant, who had not worked for a -period
of over six months. Furthermore, Carrier's ,right to establish standards of
physical fitness is undisputed. However, in this case, there is no evidence
whatever in the record to indicate the reason for the disqualification (and
restriction). It would appear reasonable for Carrier to have communicated,
at minimum, with Claimant telling him why the restriction had been placed on
his activities. Not only did Carrier fail to do this, but there is no record
whatever of the basis for the decision (see Award 6198). In view of
Petitioner's position, and the previous findings that Claimant was fully able
to return to work, the burden of establishing a bona fide basis for the
restriction was upon Carrier. This burden Carrier did not meet. There is no
probative evidence of any finding by the Chief Surgeon to substantiate his
medical determination (see Award 6561 among others). In this instance we
find that the decision to place a ,restriction on Claimant was arbitrary and
capricious and cannot be supported. The Claim must be sustained,
AWARD
Claim sustained.
Foam 1
Page
3
Award Nb. 7851
Docket No.
7579
2-SPT-CM-'79
NATIONAL RAILROAD ADJUST= BOARD
By Order of Second Division
Attest; Executive Secretary
National Railroad Adjustment Board
BY
arse B,rasch - Administrative Assistant
Dated at Chicago Illinois, this 21st day of February, 1979,