Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9588
SECOND DIVISION Docket No. 9829
2-CR-MA-183
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation be ordered to restore Machinist
James D. Terry to service and compensate him for all pay lost up to
time of restoration to service at the prevailing machinist rate of pay.
2. That machinist James D. Terry be compensated for all insurance benefits,
vacation benefits, holiday benefits and any other benefits that may have
accrued and were lost during this period, in accordance with Rule
7-A-1 (e) of the prevailing Agreement which was effective May 1, 1979.
Findings
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the pmpfoye 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, Machinist James D. Terry, entered the employ of the Carrier
on March 18, 1947. In November of 1979, the Claimant marked off on disability
and has not worked since. In October of 1980, the Carrier sought from the
Claimant's personal physician certain information relative to the doctor's
diagnosis, treatment, and prognosis of Claimant's illness. On December 10,
1980, the Carrier, not having received what it deemed satisfactory medical
evidence from the Claimant's attending physician scheduled an examination for
the Claimant on December 18, 1980, with a physician assigned to its medical
department in Cleveland, Ohio. By letter dated December 17, 1980, the Claimant
informed the Carrier's General Superintendent that he was still under his personal
doctor's care and was unable to drive or fly to Cleveland. The Claimant was
then living in Florida.
Subsequently, the Claimant was sent a notice to attend a trial on January 12,
1981,
wherein he was charged with insubordination in that he did not appear for
the examination on December
18,
1980, and that he had failed to release required
medical information. The Claimant was not present at the trial, and he was
subsequently dismissed from the service in all capacities.
F orm 1
Page 2
Award No. 9588
Docket No.
9829
2-CR-MA-183
This Board has, in the past, clearly and consistently held that when a
question arises concerning the disability of an employe, the Carrier has a firm
right to require an employe's cooperation in the securing of current, medical
information and to submit to a physical examination conducted by a physician
chosen by the Carrier. The underlying basis for such rights is to afford the
Carrier the opportunity to properly ascertain the physical fitness of an employe.
This Board recognizes the Carrier's concern about the Claimant's actual
state of health. Nevertheless, we deem the action taken as premature and do
hereby remand this dispute to the Carrier with this instruction. The Carrier
will make one final attempt via certified mail addressed to Claimant at iris
last known Florida address, return receipt requested, to notify Claimant Terry
sufficiently in advance to appear for an examination at the Carrier's medical office
on a certain day. In the event the Claimant fails to appear for and submit to the
scheduled examination, this Board hereby retains jurisdiction, and having no
alternative, will order this dispute to be dismissed with prejudice.
A W A R D
Claim remanded to the property for handling consistent with the Opinion.
Attest: Executive Secretary
National Railroad Adjustment Board
Nancy J. Dev r
4
Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 27th day of July, 1983.