Form 1 NATIONAL RAIIROAD ADJUSTMNT BOARD Award No.
8733
SECOND DIVISION Docket No.
8786
2-MP-CM-'81
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( Brotherhood Railway Carmen of the United States
_Part_ies to Dispute:
( and Canada
~ Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated
Item 6
of the
Conditions of Employment when they withheld Carman H. D. Stewart from
service for special medical examination from November
3, 1978
until
November
14, 1978. .
That the Missouri Pacific Railroad Company be ordered to compensate
Carman H. D. Stewart for eight
(8)
hours at the punitive rate for
November
3, 4, 5, 6, 7, 8, 9, 1Qs 11, 12
and
13, 1978.
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.
The Claimant is employed as a Carman at the Carrier's San Antonio, Texas
facility. Mr. Stewart had a hernia operation and had been off from work for some
time. The Carrier has a policy which requires employees who are off from work
for more than 30 days on account of serious Illness or surgery to pass a physical
examination by a physician hired by the Carrier. The results of these examinations
must also be approved by the Carrier's Chief Medical officer before the employee
is allowed to return to active sirvice. The Claimant was examined on November
3,
1978.
The Carrier's Medical Officer approved him for service on Monday, November
13,
and the Carrier attempted to contact him that morning. Evidently, the Carrier
did not reach him with their first call but did contact him later that day. He
returned to work at 7:00 a.m. Tuesday, November
14.
The Organization is seeking payment for each calendar day that the Claimant
was held out of service from and including the date of the examination until he
was approved and returned to service, November 14.
Form 1 Award No.
8733
Page 2 Docket No.
8786
2-MP-CM-'81
The instant case is another in a line of cases dealing with the Carrier's
withholding of employees from service pending physical examinations. Of the more
recent awards issued by this division dealing with this question are
6704
(O'Brien'),
7089
(Twomey),
7131
(Sickles)
7388
(Zumas),
7472
(Weiss) and
8113
(Marx). Awards
7388
and
8113
are most notable as they involve the same parties as the instant
case. In a reading of the above awards, a set of principles can be gleaned. It is
the opinion of the Board that in deference to the principle of stare deci is the
following axioms should apply in the instant case:
(1) The carrier has the inherent right unless restricted by Agreement, to
require employees to be examined by a physician of its choice and has the
right to have those results reviewed by its chief mecical officer before
allowing an employee to return to service.
(2) Unless dictated by Agreement, the Carrier must exercise its prerogative to
examine and approve an employee within a reasonable time. Usually five days
is accepted as a reasonable period.
(3)
The five-day period under most circumstances begins to toll after the date
of the employee's examination by a Carrier physician.
+) In counting the five-day period, the five days does not normally include
Saturdays and Sundays, which are usually rest days of the Carrier's Medical
Officer. The Carrier is also not liable for claimant's established rest
days.
In applying these principles to the instant case, we observe first that the
claim for November
3,
is invalid because as held in Award
8113,
the 5-day period
does not begin to toll until after the date of the exam which was Friday November
3.
November 4 and 5 were noting days of the Chief Medical Officer and they
were also the Claimant's rest days. These days would not be included in calculating
the five days per the holding of Awards
8113, 7472
and
7131.
Monday, November
5,
would be the first day counted in the five-day period. November
7, 8, 9,
10 would
comprise the rest of the period available to the Carrier to make its medical
determination. See Awards
7472, 7131
and
6704.
November I1 and 12 were again
not working days of the Carrier's Medical Officer, therefore, the first and only
date of potential liability for the Carrier would be Monday, November
13.
The Carrier argues that in respect to November
13
they are not liable. They
argue that "... since he was called in time to work on that date ... his loss of
that day's work was of his own making." However, upon a reading of the record,
we find the Carrier's position is contrary to the facts. The Board cannot conclude
he was called "in time to work". It is undisputed the Carrier didn't attempt to
reach the Claimant until Monday November
13.
We do not see how it wpuld have been
possible for the Carrier to notify the Claimant that he was eligible to return to
service within a reasonable time prior to his shift when his shift started at
7:00
a.m. It is apparent that Carrier didn't call sufficiently ahead of the
beginning of the Claimant's shift so that he could make himself available for
service. The call, in most probability, came during his shift. Logically, the
Carrier did not notify the Claimant in sufficient time to return to work as it has
an obligation to do. Therefore, the Claimant is due one day's pay at the pro rata
rate of pay.
Form 1
Page
3
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8733
Docket No.
8786
2-MP-Ctrl-'
81
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
By
riee Brasch - Administrative Assistant
Dated a'~-Chicago, Illinois, this 3rd day of June,
1981.