Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 78$0
SECOND DIVISION Docket No. 7372
' 2-MP-EW-'79
The Second Division consisted of the regular members and in
addition Referee Robert G. Williams when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Employes: .
1. That the Missouri Pacific Railroad Company violated Rules
l6(c)
and 32(a) of the June 1,
1960
controlling agreement when they
unjustly held Crane Operator J. H. Ross out of service commencing
June
9, 1975
and continuous at North Little Rock, Arkansas.
2. That accordingly, the Missouri Pacific Railroad Company be ordered
to compensate Crane Operator J. H. Ross eight hours
(8')
at the
straight time rate each day Monday through Friday commencing
June
9, 1975
and continuous until the violations are corrected.
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,
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.
In Award No.
7645,
this Board held this claim in abeyance pending receipt
of further data described in the findings. This data has been provided to
the Carrier's Medical Department, and it shows the Claimant has had no
significant improvement with his back difficulties since he was disqualified.
The Claimant is no more able to return to work than he was when he was
originally disqualified.
Our review of this record clearly demonstrates that both the Organization
and the Carrier have done all they can for this individual, and it is
regrettable that his physical condition will not .permit him to work. However,
this Board does not substitute its non-experienced opinion for the medical
expertise of Carrier's and Claimant's .physicians. We have no jurisdiction
to order Carrier to create a job for Claimant, nor do we have jurisdiction
to, in effect, create a job for Claimant in his own craft or another craft.
Form 1
Page 2
Award No.
7880
Docket No.
7372
2-re-Ew-' 79
In fact, if, arguendo, such jurisdiction was assumable by this Board, it
would be inconsistent with the clear legal facts that Carrier, and Carrier
alone, is responsible for and liable for maintaining a safe workplace and
shielding physically unfit employes from positions which, in Carrier's
judqnent, would jeopardize the employees' health and safety.
Under the Railway Labor Act, our jurisdiction is limited to adjusting
disputes growing out of existing agreements, and, in Claimant's case,
consistent with the agreement and previous decisions of this Board, we have
no
other jurisdiction or authority than to hold that as long as Claimant,
in
the normal exercise of his seniority, is unable to hold a position which,
in Carrier's Chief Surgeon's opinion, meets Carrier's minimum physical
standards, he must remain disqualified. We do, however, admonish the parties
to continue their search for other suitable employment for Claimant.
A W A R D
Claim disposed of as set forth in the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
004
%·01Z-otma,rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of April,
1979.