Form 1 NATIONAL RAILROAD ADJUSTNENT BOARD Award No.
83
SECOND DIVISION Docket No,
87.31
2-SISW-CND'
80
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
System Federation No,
45,
Railway Employes'
Department, A. F, of L. C, I. 0.
Parties to Dispute: ( (Carmen)
(
( St. Louis Southwestern Railway Company
Dispute: Claim of Em loyes:
1. That the St. Louis Southwestern Railway Company denied Cayman Painter
W. C. Searcy his rights to service subsequent to December
16, 1977,
in violation of the rules of the current controlling agreement,
2. That the St. Laois Southwestern Railway Company violated the procedural
provisions of Rule 22-1 of the controlling agreement effective
October 1,
1977,
when it failed to deny the claim within sixty (60)
days,
3.
That the St. Louis Southwestern Railway Company be ordered to return
Cayman Painter W, C. Searcy to service and make whole for all vacation
rights, all health and welfare and insurance benefits, pension benefits,
including Railroad Retirement and Unemployment insurance and any other
lost benefits including all wages that he would have earned subsequent
to December
16, 1977.
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,
Before proceeding to a substantive discussion
of
this case, we will address
the procedural issue raised by Claimant that Carrier violated Rule 22-1(a) when
it denied the claim filed on January 20,
1978
by letter dated April
13, 1978,
While the correlation of the above dates appear to raise a timeliness issue,
we find that the scheduling of a conference on March.l0,
1978
was a timely
response to Claimant's request that if Carrier was indisposed to allowing this
claim, it should docket it for discussion in conference. This is exactly what
Carrier did and we cannot from these facts conclude that a procedural violation
occurred.
Form 1 Award No.
$398
Page 2 Docket No.
8131
2-SLSW-CM-
`80 .,
Moreover, when the substantive elements of this dispute are carefully assessed,
we do not find that Carrier acted arbitrarily or capriciously when it formally
apprised Claimant on February
23, 1978
that the follow up medical findings
demonstrated that he was physical7,y unfit for service.
Claimant, who was
63
years of age at the time, was found by the third and.
neutral physician, jointly selected by his personal physician and the Carrier's
physician, to be physical7y.=tqgfied for duties as
a
caiman or painter. In
fact the impartial physician stated in part that:
"Review of the back and right knee x-rays made at Jefferson
Hospital (December
17, 1977)
by Dr. E. Frank Reed, reveals
spondylolisthetic of his lower lumbar spine with degenerative
arthritis, He has atherosclerosis of abdominal vessels. There
is also osteo arthritis of the right knee,"
Thus, Carrier's terminative decision, which was rendered pursuant to Rule
31-3(b), was based upon a concurrence of findings by two out of three physicians.
Its decision, under these circumstances was correct and in accordance with the
collective agreement.
On the other hand, we find that Carrier was plainly remiss by not addressing
the possibility of returning him to some form of light duty during the December _
16, 1977
- February 23,
1978
period, consistent with the spirit and intent of
Rule 16 Faithful Service, and Claimant's January
20,
1978
request for such type
of work. Claimant had certainly provided Carrier with long years of faithful
service and should have been given commensurate consideration. Carrier did not
respond to this portion of the claim and the third and dispositive medical
opinion was not issued until February
13, 1978
(Dr. H. L. Winela.nd letter to
Dr. John E. Meyers). We believe, upon these facts that Claimant was denied
the possibility of returning to work on a light duty basis during the December
16, 1977
- February
23,
1978 period and we will sustain the claim for this time
only. We will deny the claim for all time beyond February
23,
1978,
since
Carrier's determination of Claimant's physical qualifications was rendered
consistent with the Agreement and its managerial prerogatives.
A W A R D
Claim sustained to the extent expressed in the findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
,A4J1
"`
R semarie Branch -- Admi istrat~sistantDated at Chicago, Illinois, this
23rd day of July,
1980.
hill