Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10124
SECOND DIVISION Docket No. 10154
2-L&N-CM-'84
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( Brotherhood of Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Louisville and Nashville Railroad Company
Dispute: Claim of Employes:
1.(a) That the Louisville and Nashville Railroad Company withheld Carman
Louis Starritt from service from May 31, 1981, through July 5, 1981,
a total of 26 days or 208 straight time hours.
(b) Accordingly, the Louisville and Nashville Railroad Company should be
ordered to compensate Carman Louis Starritt for 26 days or 208 hours at
the straight time rate of pay.
2. (a) That the Louisville and Nashville Railroad Company denied Carman Louis
Starritt his contractual right to operate the Corbin Wrecker as the
Engineer at wrecks and derailments beginning June 2, 1981, through
July 20, 1981, as listed below, and for each instance that the wrecker
was called and Carman Starritt was denied his operators position as a
Wrecker Engineer subsequent to July 20, 1981.
(b) Accordingly, the Louisville and Nashville Railroad Company should be
ordered to compensate Carman Louis Starrittat the time and one-half rate
of pay, the following instances where he would have earned as shown:
June 2, 1981 Wallins Creek 5 hours
June 3, 1981 Wallins Creek 5 hours
June 9, 1981 W. Yard Corbin 5 hours
June 12, 1981 Benefeild, Tenn 101 hours
June 13, 1981 Benefeild, Tenn 24 hours
June 19, 1981 Scotchia Mine 5 hours
June 20, 1981 Scotchia Mine 16 hours
June 21, 1981 Scotchia Mine 10!j hours
June 22, 1981 Scotchia Mine 22 hours
June 23, 1981 Scotchia Mine 10 hours
June 23, 1981 Morley, Tenn 21~ hours
June 24, 1981 Morley, Tenn 11 hours
June 28, 1981 SEW Yard, Corbin, KY 411 hours
June 20, 1981 Bourne North 7 hours
July 1, 1981 Bourne North 4 hours
July 2, 1981 Bourne North 5 hours
July 19, 1981 Chad Yards 62 hours
July 20, 1981 Chad Yards 16 hours
(c) Accordingly, the Louisville and Nashville Railroad Company should be
ordered to compensate Carman Louis Starritt that which he would have
earned had he not been removed from his position as Wrecker Engineer
subsequent to July 20, 1981.
Form 1 Award No. 10124
Page 2 Docket No. 10154
2-L&N-CM-'84
3.(a) That the Louisville and Nashville Railroad Company improperly removed
Carman Louis Starritt frorik the Corbin, Kentucky Engine Carpenters
Holiday and Miscellaneous Overtime Board on May 31, 1981.
(b) Accordingly, the Louisville and Nashville Railroad Company should be
ordered to compensate Carman Louis Starritt for that overtime that he
would have earned had he been allowed to retain his name on the Carmens
Engine Carpenters Holiday and Miscellaneous Overtime Boards.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carri:rs 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 of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At the time of the instant dispute, the Claimant, a Carman, was over 76 years
of age and his seniority date was September 2, 1922. The dispute arose at the.
Carrier's facility at Corbin, Kentucky.
On March 10, 1981, the Claimant underwent a physical examination to determine
his physical ability to continue his employment. Based on the results of this
examination, the Carrier's Chief Medical Officer, Dr. Mead, determined that
Claimant was not medically qualified for unrestricted service as a Carman which
included his assignment as a Wrecker Engineer. After Dr. Mead personally examined
the Claimant on March 31, 1981 and received an indication that he was to retire in
two (2) months, Dr. Mead authorized the Claimant's continuance in service for two
(2) months or until May 31, 1981. Dr. Mead advised the Claimant that he was to
visit his personal physician to consider resuming anti-hypertensive medication
because of his elevated blood pressure. On May 18, the Claimant wrote to Dr.
Mead, and among other things, he requested Dr. Mead to allow him to remain in
service until September 2, 1981 which would give him a total of 59 years of
service. In a telephone discussion with the Claimant on June 1, 1981, Dr. Mead
informed him that he was medically disqualified for unrestricted service on his
wrecker assignment but that he could.approve a request for continuing his service to
an inside desk job. The Claimant advised Dr. Mead that he was not interested in
continuing employment under those conditions. Dr. Mead followed up his telephone
discussion with a letter to the Claimant confirming that he was medically
disqualified for unrestricted -arvice on his wrecker assignment.
From July 6, 1981 to July 31, 1981, the Claimant began working as an "AAR
write up man" which included half of his time spent at a desk and for the remainder
of his time he performed miscellaneous duties. On August 3, 1981, the Claimant
was discovered lying unconscious alongside the tracks near the shop area. He
remained off the job during August, 1981 and then requested and was granted a
60-day leave of absence due to personal illness.
Form 1 Award No. 10124
Page 3 Docket No. 10154
2-L&N-CM-'84
On November 4, 1981, the Carrier was informed by the Claimant's personal
physician that he had been treated for a phlebitic condition since October 2,
1981 and that he was releasing him to return to service on November 9, 1981.
After the Carrier obtained additional information regarding the Claimant's physical
condition, he reported for work on November 24, 1981. In a follow-up report, the
Claimant's personal physician recommended against any change in his work status.
Contrary to the position of the Organization, the Board concludes that the
Claimant was not disciplined between May 31, 1981 and July 6, 1981; indeed, he was
medically disqualified for unrestricted service on his wrecker assignment. Thus,
Rule 34, which provides for the procedure to be followed when discipline is
involved was not violated by the Carrier.
It is firmly established in the railroad industry that the Carrier has the
right and the obligation to establish physical standards to determine the Fitness
of its employes. Absent a showing that the policy of the Carrier is unreasonable,
or that it has been applied to the Claimant in an arbitrary, capricious, unreasonable
or discriminatory manner, the Carrier's medical disqualification of the Claimant
should not be disturbed. See Third Division, Award No. 6753. The record fails to
establish such a showing. Moreover, in light of the Claimant's age and medical
problems, the Carrier prudently and reasonably withheld the Claimant from service
from May 31, 1981 to July 6, 1981 and prudently and reasonably restricted him to
inside work.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy /,T- 1Pvver - Executive Secretary
Dated at Chicago, Illinois, this
17th day of October
1984.