Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7976
SECOND DIVISION Docket No. 7678
2-N&W-CM-'79
The Second Division consisted of the regular members and in
addition Referee Arthur T. Van Wart when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Em2loyes:
1. That under the current Agreement Leroy Juenger, Ca~nan was unjustly
and improperly removed from service of the Norfolk and Western
Railway Company January 30,
1976.
2. That accordingly the Norfolk and Western Railway Company be ordered
to reinstate Cayman Leroy Juenger with his seniority rights
unimpaired.
3. That the Norfolk and Western Railway Company be ordered to reimburse
Cayman Leroy Juenger for all time lost beginning January 30,
1976 and continuing until he is returned to service.
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,.
Claimant, who was first employed in 1953, worked at Carrier's car shops
in St. Louis, Missouri. He suffered an on-duty back injury on May 30,
197+,
Claimant returned to full time duty Feb rm ry 8, 1975 as a Cayman in Carrier's
Luther Yards, St. Laois and worked up until and including January 25, 197.
Claimant undertook a FELA action and entered suit for his on-duty injury
and demanded a judgment of $250, 000. 00, Item 6 of Claimant's Complaint
stated:
Form 1 Award No. 7976
Page 2 Docket No. 7678
2-N&W-CM-'79
"6,
That as a direct and proximate result of the
aforementioned negligence of the Defendant, the
Plaintiff sustained diverse and numerous permanent
injuries about his face, head and body, all of which
have caused and will cause him to sustain great pain
and mental anguish; that Plaintiff has also been
obliged to spend large sums of money in hospitals and
medical expense in endeavoring to cure his said
injuries; and that Plaintiff has lost and will lose
large sums of money in earnings and income he would
otherwise have earned, had it not been for his
injuries."
The suit came to trial January 26, 1976 and concluded January 29, 197.
C1_aixnant's doctors testified during the trial that his injuries were permanent
in nature and that he could not and should not perform the ardous duties of
a carman. Claimant's Attorney requested that the jury compensate Claimant
for the ten (10) remaining years before he reached the retirement age of
sixty-five (65). The jury, at the conclusion of his trial, awarded Claimant
a judgment of $85,000,
Claimant reported for duty January 30, 1976 at which time he was
advised that based upon his pleadings, and the judgment rendered as a
result of Claimant's plea, he was estopped from contending that he could
perform the duties of a Carman and that he would not be permitted to return
to work with the Company, as a result thereof the instant claim was filed.
This is not a disciplinary matter. Claimant's name is still carried
on the Carmen's roster at St, Louis with a notation beside it that he is in
a sick status,
Carrier's affirmative defense raises a case of estoppel. The Court of
Appeals in Scarano v. Central RR of New Jersey, 203 F 2d 510 expressed the
rule as:
"a plaintiff who has obtained relief from an adversary
by asserting and offering proof to support one position
may not be heard later in the same court to contradict
himself in an effort to establish against the same
adversary a second claim inconsistent with his early
contentions. Such use of. inconsistent positions would
most flagrantly exemplify that playing fast and loose
with the courts which has been emphasized as an end the
- courts should not tolerate,"
"Scarano" was followed in Jones v, Central of Georgia Ry. Co. (U'SCD
ND. Ga) 48 Lc par.
1856,
which case involved Carrier's refusal to apply
First Division Award 20 023 which had sustained therein a claim of an employee
who, as here, had suffered an on-duty injury. Jones filed suit under the
Federal Employers' Liability Act to recover the alleged therein that he was
permanently disabled. The jury found in Jones' favor. After the monetary
Form 1 Award No.
7976
page
3
Docket No.
7678
2-N&W-CM-'79
satisfaction had been reached, Carrier removed his name from the seniority
roster. Jones grieved and sought restoration of his seniority and pay for
time lost as a result thereof. His claim was ultimately sustained by the
NRAB's First Division Award 20
023.
Carrier refused to comply therewith
causing the suit for enforcement of the Award and Order. The Northern District
Court of Georgia held:
"It seems to this Court the applicable ruse of law is
firmly established that one who recovers a verdict based
on future earnings, the claim to which arises because of
permanent injuries, estops himself thereafter from
claiming the right to future re-employment, claiming that
he is now physically able to return to work."
Similarly, the Courts in Wallace v. Southern Pac. Co., 106 F Supp.
742
(2l LC Par.
67,213),
Burbank v. Southern Pac. Co..,
94
F Supp. 11 (18 LC Par.
65,g25);
Sands v. Union Pacific Railroad, 148 F Supp.
422, 31
LC Par.
7043,
among other cases, followed this legal rationale..
This Division in Award
1672
(Carter) held:
"It is not a violation of the agreement to bring suit
against the carrier to recover damages against the
carrier. But
when the
employee alleges permanent
disability resulting from the injury and pursues that
claim to a final conclusion and obtains a judgment on
that issue, he has legally established his permanent
disability and the carrier is under no obligation to
return him to service.
The Third Division in Award
6215
(Wenke) expressed the rule as:
"The basic philosophy underlying these holdings is that a
person will not be permitted to assume inconsistent or
t
mutually contradictory positions with respect to the same
subject matter in relief from an adversary by asserting and
offering proof to support one position may not be heard
later, in the same or another forum, to contradict himself
in an effort to establish against the same party a second
claim or right
inconsistent with
his earlier contention.
Such would be against public policy."
The Awards of the Adjustment Board, as has those of Public Law Boards,
paralleled the decisions of the courts. Such doctrine was paraphrased by
PIB
1+93
(Moore) on this property, in its Award No. 10, "You cant have ii;
both ways. You either are or you are not."
Foam 1 Award No. 7976
pie 4 Docket No. 7678
. 2-N&W-CM-'79
' This Board is impelled to follow such doctrine and the Awards of the
various Divisions of the NRAB as well as FLB 19+3, on the property, which
denied claims similar, if not identical, to the instant case. This claim
will likewise be denied.
A W A. R D
Clain denied.
NATIONAL RAILROAD ADJUSTPENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By -'
semarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 20th day of June, 1879.
DISSENT OF LABOR MEMBERS TO AWARD NO. 797
6, DOCYFT NO. 7678
The
Claimant in
-this dispute
was' working for Carrier
as a Carman when he became
injured en May
30, 1974. He was
able
to return to work on February 8, 1975 aand did so, continuing
through January 25, 1976, preceding the date he went to trial
over his personal injury.
The trial lasted throe t3) days and Claimant ,vas
awarded $85, 000. 00. Immiediately following the judgment,
Claimant was not permitted to return to work as a Carman.
In denying his claim to that right before this Board,
the Majority stated in part:
"Claimant°s doctor) testified during the trial
that his injuries were permanent in nature and
that he
could
not and should not porf.orrz the
arduous duties of -a Carman. "
We find no such language in the record, and how could
we? Claimant had continually performed the duties of a Carman
since he returned to work February 8, 1975 up to the date of
the trial. What his doctor did testify to was:
"In fact, I recommended to him he should work
as long as he can, because he is not s~illecd
in any other field or highly educated so he
can work, let's say like a lawyer or a duct=o-r
or someone that knows cor: puters and so en an:
so forth."
Claimant's attorney, in his pleadings :-,efore the
Court stated:
2 - Dissent to Award 7976
"He is a good worker. He's continued to do
his job and, ladies and gentlemen, I think
that his record has been such that... that we
should reasonably anticipate, his
past
record
is such, that he will reasonably be able to
continue and will do and perform his
particular
job."
The Majority is in gross
error in
its I`indings.
Claimant has now begin taken out of the labor market as a result
of that gross
error and
permanently derived of the opportunity
to pursue
his
craft
work. eve
must
dissent.
C. E. r`~i'7~E'1et
Labor
i~iember
DISSENT OF LABOR MEMBERS
TO AWARD PTO.
7976, DOCKET NO. 7678
The Claimant in this dispute was working for Carrier
as a Carman when he became injured on May 3 0, 1974. He was
able to return to work on February 8, 19?5 and did so, continuing
through January 25, 1976, preceding the date he went to trial
over his personal injury. .
The trial lasted three (3) days and Claimant was;
awarded $85,000.00. Immediately following the judgment,
Claimant was not permitted to return to work as a Carman.
In denying his claim to that right before this Board,
the Majority stated in part:
"Claimant's doctors testified during the trial
that his injuries were permanent in nature and
that he could not and should not perform the
arduous duties of a Carman."
We find no such language in the record, and how could
we? Claimant had continually performed the duties of a Carman
since he returned to work February 8, 1975 up to the date of
the trial. What his doctor did testify to was:
"In fact, I recommended to him he should work
as long as he can, because he is not skilled
in any other field or highly educated so 'he
can work, let's say like a lawyer or a doctor
or someone that knows computers and so on and
so forth."
Claimant's attorney, in his pleadings before the
Court stated:
1
- 2 - Dissent to Award 79'76
"He is a good worker. He's continued to do
his jcb and, ladies and gentlemen, I think
that his record 'nas.been such that- that . that we
should reasonably anticipate, his past record
is such, that he will reasonably be able to
continue and will do and perform his particular
job."
The Majority is in gross error in its Findings.
Claimant has now been taken out of the labor market as a result
of that gross error and permanently deprived of the opportunity
to pursue his craft work. We must dissent.
07.1'
C . E . ;dhee er - \
Labor Member