Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11187
SECOND DIVISION Docket No. 11241
2-SP-SMW-'87
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
(Sheet Metal Workers' International Association
Parties to Dispute:
(Southern Pacific Transportation Company
(Western Lines)
Dispute: Claim of Employes:
That claimant Rudolfo Comparan be compensated for all lost wages.
Return to service with all seniority rights. Make claimant whole for all
vacation rights. Pay the premiums for hospital, surgical and medical benefits
for all time held out of service. Pay the premiums for group life insurance
for all time held out of service. Said claim to begin 12-14-84 and continue
until it is satisfactorily disposed of in its entirety. In addition to the
money claim herein, the Carrier shall pay claimant an additional amount of 6%
annum compounded annually on anniversary date of claim.
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 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.
Claimant had been in active service of the Carrier for about ten
years. On August 15, 1981, he suffered a personal injury while on duty.
Claimant later filed suit against the Carrier seeking $630,000.00 in damages.
In March, 1983, the Jury rendered a verdict of $140,000.00 to be paid to
Claimant.
On February 10, 1985, t'ze Local Chairman of the Organization submitted a Claim to the Plant Manager of Carrier's Locomotive Maintenance Plant
at Los Angeles, contending that Claimant was being unjustly withheld from
service by the Carrier for allegedly being physically disqualified for
service. The Claim submitted by the Local Chairman was substantially the same
as submitted to this Board. On March 19, 1985, the Claim was denied by the
Plant Manager.
Form 1 Award No. 11187
Page 2 Docket No. 11241
2-SP-SMW-'87
The Organization contends that on May 8, 1985, the General Chairman, -
by "Certified Mail - Return Receipt Requested," appealed the Claim to
Carrier's highest designated officer of appeals; that on May 15, 1985, the
General Chairman requested a conference on May 30, 1985, to discuss the Claim
in behalf of Claimant, along with two other Claims; that on May 23, 1985, the
Carrier's highest designated officer of appeals advised the General Chairman
that he was unable to find any record of a Claim being filed on behalf of
Claimant, and stated that if a Claim had been filed, he (Carrier's highest
designated officer of appeals) would appreciate a copy of it. On May 28,
1985, the General Chairman responded by furnishing a copy of the entire file,
a copy of his letter of May 8, 1985, and a copy of Return Receipt for Certi
fied Mail showing delivery to the Carrier of the documents on May 10, 1985.
On August 16, 1985, the Carrier's highest designated officer of appeals
responded to the General Chairman, referring to discussions, stating that he
had not received the initial Claim; that the statements furnished by Claim
ant's doctors placed certain restrictions on the work to be performed by
Claimant; that the Carrier's Chief Medical Officer evaluated the restrictions
placed on Claimant's services were permanent; that there was no job available
to Claimant, on the basis of his seniority, that could be accomplished with
the medical restrictions placed on his services; and that Claimant was
estopped from returning to work by virtue of receiving a large settlement as a
result of a Court Trial, in which it was alleged by Claimant, or alleged on
his behalf, that he would never be able to return to railroad work. The
Carrier also contended that the Claim was not timely filed initially.
It was also contended by the organization in the on-property handling
_~rr'
that the Agreement was violated by the Carrier as the appeal of the General
Chairman was not disallowed within sixty days. The Organization also con
tended on the property, and continues such contention before the Board, that
under Rule 26, captioned Faithful Service, Claimant was entitled to return to
work.
The contentions of the parties before the Board are substantially the
same as on the property.
Before discussing the merits of the dispute, the Board must dispose
of the time limit contentions raised by the parties. The record is clear that
the Carrier did not deny the Claim appealed by the General Chairman within
sixty days. We accept the Certified Mail Return Receipt, furnished by the
General Chairman, as evidence that appeal was delivered to the Carrier on May
10, 1985. It showed a postal stamp of delivery on that date, and was signed
by someone representing the Carrier, showing that it was received in the
Carrier's mail room. If some breakdown existed between Carrier's mail room
and the Labor Relations office, that could not properly be charged to the
Organization. It is noted that following receipt of the General Chairman's
letter of May 28, 1985, the Carrier did not respond until August 16, 1985, far
in excess of sixty days. We find that the Carrier was in violation of the
Time Limit Rule.
Form 1 Award No. 11187
Page 3 Docket No. 11241
2-SP-SMW-187
The question then arises as to the remedy for Carrier's violation of
the sixty-day provision of the Time Limit Rule. In recent Second Division
Award No. 10754, the Board cited many precedent decisions holding that a late
denial is effective to toll Carrier's liability for the procedural violation
as of that date. Among the precedent decisions cited were Decision No. 16 of
the National Disputes Committee, Second Division Awards Nos. 4853, 6370,
Interpretation No. 1 to Second D:_vision Award No. 6326, and Third Division
Awards Nos. 24298 and 25417. We find that the proper measure of damage for
Carrier's violation of the Time Limit Rule is compensation for Claimant at his
straight time rate from December 14, 1984, through August 16, 1985. Allowance
of this portion of the Claim on the time limit issue has no effect on the
merits of the Claim.
On the record before us., we find no support for Carrier's allegation
that the Time Limit Rule was vio7_ated by the Organization.
As to the merits of the dispute, we must first consider the doctrine
of estoppel as raised by the Carrier in the on-property handling, and relied
upon by the Carrier in its Submission to this Board. The different Divisions
of the National Railroad Adjustment Board, as well as Public Law Boards have
issued numerous Awards involving the doctrine of estoppel. Third Division
Award No. 23830 cited Award 10 of Public Law Board No. 1493, Awards Nos. 1 and
2 of Public Law Board No. 1716, first Division Award No. 20166, Second Division Awards Nos. 1672, 5511, 6129 and Third Division Award No. 6215.
In support of its contention as to the applicability of the doctrine
of estoppel the Carrier has submitted a Transcript of the testimony of
Claimant's principal treating physician in Claimant's F.E.L.A. suit in United
States District Court, Central W_strict of California, on March 3, 1983, in
which the doctor testified that Claimant had been disabled from his usual work
until that time, and it was his opinion:
"That the patient should retrain through the
services of rehabilitative training, and this is
based on my given knowledge of the patient's job
description and the extent that I understand it."
The doctor went on to testify:
"I believe his condition is chronic and I don't
see it changing in the near future."
The Carrier asserts that: in view of the testimony offered and the
judgment of $140-,000.00 in favor of Claimant, the Claimant was and is estopped
from returning to Carrier's service. The Carrier also offers in support of
its position Award No. 6 of Public Law Board No. 1917 and Award No. 9 of
Public Law Board No. 1198. Court: documents and Awards of Public Law Boards
are matters of public record, and, as such, are admissible in proceedings
before this Board at any time.
Form 1 Award No. 11187
Page 4 Docket
No.
11241
2-SP-SMW-'87
After a careful review of the entire record, we find, on the merits
of the dispute that the doctrine of estoppel is applicable and that Claimant
is estopped from returning to the service of the Carrier. In Third Division
Award No. 23830 numerous Court cases were cited upholding the doctrine of
estoppel. The Award went on to hold:
"The Carrier has also cited numerous Board
Awards, and Public Law Board Awards following the
decisions of the courts. Among those cited are
Award 10 of Public Law Board
No.
1493; Awards 1
and 2 of Public Law Board
No.
1716, First
Division Award 20166, Second Division Awards
1672, 5511, 6129, and Third Division Award 6215.
We think that Third Division Award No. 6215
accurately sums the matter up.
'The basic philosophy underlying these holdings is that a person will not be permitted to assume inconsistent or mutually
contradictory positions with respect to the
same subject matter in the same or successive actions. That is, a person who has
obtained relief from an adversary by asserting and offering proof to support one position may not be heard later, in the same or
another forum, to contradict himself in an
~r
effort to establish against the same party
a second claim or right inconsistent with
his earlier contention. Such would be
against public policy.'"
We will follow Award No. 23830 (Third Division) and deny the merits
of the dispute on the doctrine of estoppel.
The Claim will be sustained only to the extent of awarding Claimant
compensation at his straight time rate from December 14, 1984, through August
16, 1985, as previously indicated. In all other respects the Claim will be
denied.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
, 5C
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1987. ._,~r