r
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10255
SECOND DIVISION Docket No. 9919
2-GTW-CM-85
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Grand Trunk Western Railroad Co.
Dispute: Claim of Employes:
1. That the Grand Trunk Western Railroad Company violated Rule 18 and 31
of the Controlling Agreement, when they denied Carman, Rosco Smith the
right to return to work, due to injury sustained while in the service
of the Carrier.
2. That accordingly, Grand Trunk Western Railroad company be ordered to
restore Carman, Rosco Smith to service with seniority rights, vacation
rights, and all other benefits that are a condition of employment
unimpaired, with compensation for all time lost from December 27, 1981
plus reinbursement (sic) for all losses sustained account of loss of
coverage under Health and Welfare and Life Insurance Agreements during
time held out of service. ,
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 employes iaithin 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, Rosco Smith, was injured while on duty on February 6, 1978.
The tip of his fourth finger was amputated in an accident while on a wrecking
crew assignment. As a result of this injury, Claimant was assigned to light duty
work when it was available. For approximately two years, the Claimant continued
to be assigned light duty work. However, in mid-1980, due to a decline in
business, which is still ongoing, the Carrier had a reduction in force which
necessitated the eventual furlough of the Claimant.
Despite this decline in business, the Carrier continued to employ the
Claimant on a light duty
assignment for
ninety (90) days from July 7, 1980.
After this period, the Claimant was again examined by the Carrier Chief
Medical Officer, Dr. V. J. Gallant, whose report concluded that the Claimant's
condition had not improved since the accident. Additionally, the Claimant
complained of extreme pain when his injured finger was exposed to cold weather.
Form 1 Award No. 10255
Page 2 Locket No. 9919
2-GTW-CM-185
Finally, on November 7, 1980, the Carrier laid the Claimant off because of
the Chief Medical Officer's report and because there would be no further work
that could be considered light duty. The Carrier, in a letter from the Car
Foreman to the Claimant, stated, "Due to you not being able to work the light
duty we have available for you because of the cold weather allegedly causing you
to experience pain in your finger, there is no alternative other than to lay you
Offn.
The record reveals that the Claimant's condition has not changed since his
furlough and that he has refused further surgical procedures to alleviate the
pain in his finger.
The Organization contends that the Carrier has violated the following portion
of their Agreement:
"Rule 18, Faithful Service;
Employees covered by this agreement who by reason of
long and faithful service in the employ of the Company,
shall be given such light work as they are competent to
handle, when vacancies occur."
The Carrier takes the position that there are no light duty positions available
and that there are not enough light duty tasks to justify the creation of a restricted
position in the Carrier's craft at its Detroit repair facilities.
Our review of this record indicates that the Carrier has made several attempts
to continue Claimant's employment after the accident injuring his finger. It is
also clear that the Organization has acknowledged the limitations on the Claimant's
ability to work, specifically his inability to perform work for a prolonged period
of time in cold weather.
It is regrettable that the Carrier did not have sufficient light duty work
to keep the Claimant employed. However, it is well established that this Board
does not have jurisdiction to order the Carrier to create a job for the Claimant.
It is the Carrier's responsibility to maintain a safe work place and to protect
physically unfit employees from assignments which could endanger their health and
safety. See Second Division Award 8020.
By the organization's own admission, the Claimant is limited in his range of
performance of Carrier's work because of his sensitivity to cold weather and the
resulting pain he experiences when exposed. The Carrier has fulfilled its
obligation under Rule 18; it has provided light duty work for the Claimant when
work was available.
Unfortunately, due
to reductions in the work force, a
decrease in freight traffic and the resulting reduction in repair work on freight
cars, the Carrier is no longer able to offer light duty work to the Claimant.
The record demonstrates that the Carrier has complied with the letter and
spirit of Rule 18. Therefore, no violation has occurred. Nevertheless, this
Board encourages the parties to continue their efforts to find suitable alternative
work for this Claimant.
Form 1 Award No. 10255
Page 3 Locket No. 9919
2-GTW-CM-'85
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
G(
Nancy J.er - Executive Secretary
Dated at Chicago, Illinois, this 6th day of February 1985.