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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9965
SECOND 'DIVISION Docket No. 9980
2-MP-CM-'84
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( Brotherhood Railway Carmen o f the United States
Parties to Dispute: ( and Canada
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rules 13 (a) & id),
25 and 32 of the controlling Agreement in withholding and disqualif.~Jing
Carman W. A. Dickerman from the job of Locomotive Carpenter at Barton
Street Shop, St. Louis, Missouri.
2. That the Missouri Pacific Railroad Company be ordered to restore Ca:rman
W. A. Di ckerman to the job of Locomotive Carpenter and compensate him
for all wage loss starting March 9, 1981 and continuing until violation
is corrected.
3. That the Missouri Pacific Railroad Company violated Rule 31 time limits
when Chief Mechanical Officer, Mr. D. M. Tutko, failed to respond to
employe appeal dated August 10, 1981. Claim must be allowed as presented.
Findings:
The Second Division o f 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 employes within the meaning of the Railway Labor Act
as approved June 21, 1934.
This Division o f the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On July 7, 1980, the Claimant was assigned the job of Locomotive Carpenter
at the Carrier's Barton Street Shop in St. Louis, Missouri after having successfully bid on the job. The Carrier disqualified him from the position on March 4,
1981 and again on August 7, 1981.
Relying upon Rule 31 (a), both parties have raised procedural issues, with
the Organization contending that the claim is to be allowed as presented because
the Carrier failed to respond to its appeal dated August 10, 1981; and the Carrier
contending that the claim is barred because it was not filed within sixty (60)
days from the date o f the occurrence on which the claim is based. The Board is
of the view that the dispute can be disposed of on its merits and accordingly it
is unnecessary to resolve the procedural issues raised by the parties.
Form 1 Award No. 9965
Page 2 Docket No. 9980
2-MP-CM-'84
Turning to the merits, the record warrants the conclusion that the Carrier
disqualified the Claimant from the Locomotive Carpenter job because he was not:
physically qualified to perform all of the duties of the position. The description
of the job, namely, "Business Cars and elsewhere as needed" is sufficiently broad
to encompass the duty of spray painting with polyurethane paint which is utilized
for the necessary upkeep and maintenance of business cars. Indeed, an employe
must be able to perform all of the duties of a position "including the occasional
and unusual." See Third Division Award No. 14173.
Despite the use of an OSHA-approved respirator provided by the Carrier, the
Claimant became i11 on February 19, 1981 while painting a business car with
polyturethane paint. Between February 19 and March 2, 1981 , the Claimant was
under the care of Dr. Guerra, who was listed among the Company Medical Officers
authorized by the Carrier to treat employes for-on-the-job injuries. On March 4,
the Claimant returned to work with a letter from Dr. Guerra, in which he stated
that the Claimant "is rot able to spray paint with polyurethane paint." Thus,
the Carrier had a reasonable basis for disqualifying the Claimant from the Locomotive
Carpenter job for physical or medical reasons.
On May 22, 1981, the Claimant was permitted to return to the job of Locomotive
Carpenter without being required to paint, after Dr. Guerra wrote that the Claimant
is released to work without restriction, "if", the Carrier provided him "with
proper instructions in the use of polyurethane paint and adequate respiratory
equipment for his use while painting with polyurethane paint." By reason of a
Material Safety Data Sheet issued by the Department of Labor concerning the
activator chemical found in the Carrier's polyurethane paint, the Carrier was
advised that "allergy prone individuals may be sensitized and should not be
exposed to isocyanates." As a result, on August 7, 1981, the Claimant was again
disqualified from the job for physical or medical reasons.
No Rule, award or practice has been drawn to the Board's attention which
requires the Carrier to purchase special respiration equipment for the claimant's
use, due to his sensitivity to polyurethane paint. The Carrier demonstrated its
good faith by furnishing the Claimant with CSHA-approved equipment which safeguards
the ozdinary occupant from the safety risks involved in utilizing polyurethane
paint. The Carrier is not required to incur additional costs to obtain equipment
which is necessitated by the Claimant's sensitivity or special vulnerability,,
rather than by the job itself. Furthermore, in light of the Claimant's sensitivity,
the protective equipment which the Carrier pcssessed would not have adequately
safeguarded him while painting with polyurethane paint. Accordingly, the Boaird
finds that the disqualification of the Claimant by the Carrier had a reasonable
basis and was not arbitrary.
Form 1 Award No. 9:965
Page 3 Docket No. 9980
2-MP-CM-184
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
~'~ -
Nancy J. eer - Executive Secretary
Dated at Chicago, Illinois, this 13th day of June, 1984