Form 1 NATIONAL RA1L.ROAD ADTUSTME-NT BOARD Award No. 8035
SECOTTI) DIVISION Docket No. 7962
2-EJ&E-CM-' 79

The Second Division consisted of the regular members and in addition Referee George S, Roukis when award was rendered.

( System Federation No,6, Ra,ilvra.y Employes'

( Department, A, F, of L. - C. I. 0.

Parties to Dispute: ( (Carmen)
(
( Elgin, Joliet and Eastern Railway Com_pa.ny

Dispute: Claim of Employes:

1. That Cax",na.n D=avid L, Carter was unjustly withheld f:=°crm the service

of the Elgin, Joliet & Eastern Tta:i.lwair Company fro:cn February 28,

1977 through and including April 27, 3.977 in violation of

Agreeanen'c Rules 103 and 100.

2. That the Elgin, Jb1.:i_ot & Eastern Campany, hereinafter

referred to as the Ca,rr:i.er, be ordered to pay Ca.y:,:an Carter,

herein N:1'-Ler referred. to as C:V!,vmant, eight (8) hours pay at the

,. pro rata. rate for each of the fa.:f t,y-.ns tie ( 5g ) d a,~ys during, which he was unjustly withheld. from service plus v,,,~cation, seniority and all other rights and, benefits unimpaired,

Findings:

The Second Division of the Adjustment Board, upon the whole record and all the evidences 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 Railz;ray 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 asserts that carrier violated Agreement Rules 103 and 100 when it unjustly withheld him from service from February 28, 1977 through April 27, 1977. Previously he had voluntarily removed himself from work on January 13, 1977 because of psychological problems, but presented to the Division General Car Foreman on Februa.xnj 28, 1977, the Verification of Private Medical Form, dated February 14, 1977 indicating his diagnostic profile and a note from his personal physician, dated February 21, 1977 stating that he was now released to work on February 28, 1977. He contends that carrier disregarded his physician's affirmation when :it did not immediately re-employ him.
Form 1 Award No. 8035
Page 2 Docket No. 7962
2-EJ&E-CM-'79

Carrier, on the other hand, argues that the February 21, 1977 communication was medically insufficient to determine accurately claimant's mental health status and requested a comprehensive report. It contends that it was justified by its public interest responsibility and the nature of claimant's illness to seek this information.

It concluded that the personal physician's letter of March 31, 1877 comported with its requirements and ci.a-imant was duly referred to the office of Division General Car Foreman to obtain the needed forms to undergo a medical examination at the Gary Work Dispensary.

In reviewing this case we do not find as contended by c7almawt that the

Feb,rua-cy 21, 1977 do ct:.men t was disposi rive of his medical condition,
specifically when he :informed the carriers phys:icxv.n that he was on
medication. This adYn:~.ssion, by J.tself, was, sufficient justification to
warrant, follow up x_1~ld.x.caJ. screening. See, for exaxn_:_~e, Second Division Av -,,rd d
6233 vrher a we held in pertinent part tl:a;:,, "Carrier has not only the ,right
but the duty to ta,'t~e necessary precautions in ins^ax°ing that an r::yloyee a.s phys:i.ca;la;T able to .perforn h7.s job duties without endangering the ev-ployVe's .life as well as t,he lives of others".

We believe, however., that the March 3:1., 1977 letter from the personal physician to carrier's chief surgeon de~Laalsng claimant's conaltion and certif:ya.ag his fitness to rettjy°n to work ft~1.ly satisfied carrier's concerns. In pa,xt:i.ca1a.r, we nave the following passa, e, "Mr. Carter was seen on this date, MlarCh 31, 1977 and was again evaluated arid there was no demonstrable evidence of any depressive symYaton;ato:!oLy nor paran~d ideation. It is ray definite opinion that he is fua.ly capable of returning to work at his original position -vrith no limitations".

Based upon this professional confirmation, carrier was under amore compelling obligation to return claimant to work sooner. There were no mitigative reasons for waiting until April 28, 1977 to accomplish this purpose and it was not cured by the fact that the chief surgeon eras on vacation from April 7, 1877 to April 27, 1877.

Accordingly, we wall order that claimant be paid beginning April 6,

1977 up and until the time he was reinstated on April 27, 1977.

A W A R D

Claim sustained to the extent expressed in the Findings.

NATTOl`IAZ RAILROAD ADJUSTb2~tV'I BOARD

By Order of Second Division

Attest; Executive Secretary
National Railroad Adjustment Board

B ~-~- .,
Y
R'semarie Branch - Admiziistrative Assistant Dated at Chicago, Illinois, this 8th day of August, 1g79·