Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11406
SECOND DIVISION Docket No. 11074
88-2-85-2-275
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Missouri Pacific Railroad Company
Dispute: Claim of Employee:
1. That the Missouri Pacific Railroad Company violated the controlling Agreement, Rule 17, when they refused to let Cayman C. W. Lyons return to
work on light duty.
2. That the Missouri Pacific Railroad Company be ordered to compensate Cayman C. W. Lyons eight (8) hours pay at the straight time rate beginning September 15, 1984 and continuing until he is returned to work.
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 employee involved in this
dispute are respectively carrier and employee 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 has been employed by the Carrier since 1958. On July 13,
1982, Claimant took a leave of absence due to medical reasons. On September
10, 1984, Claimant's personal physician released Claimant for return to light
duty work; Carrier's physician's approved Claimant's return to light duty work
on September 19, 1984. Claimant subsequently was advised that no such work
was available. The Organization thereafter filed a Claim on Claimant's
behalf, charging that Carrier had violated Rule 17 of the Controlling Agreement by refusing to alloy Claimant to return to service on light duty status.
Rule 17 provides:
"Employee who have given long and faithful service in
the employ of the company and who have become unable
Form 1 Award No. 11406
Page 2 Docket No. 11074 '
88-2-85-2-275
to handle heavy work to advantage, will be given pre
ference to such light work in their line as they are
able to handle."
The Organization contends that Claimant has given long and. faithful
service to the Carrier, as set forth in Rule 17. Claimant's seniority allows
him to hold jobs that he is physically capable of performing; also, Claimant's
physician has specified that Claimant is able to perform the duties required
in these jobs. The Organization points out that Carmen who have sustained in
juries are working on light duty status throughout the system; Claimant should
not be treated differently. The Organization therefore argues that the Claim
should be sustained.
Carrier asserts that Rule 17 does not require it to provide light
duty work to individuals with medical restrictions when no light duty work is
available. Although Claimant may have given Carrier long and faithful service, this does not obligate Carrier to create a position for him. Carrier
contends that it does have a policy of providing restricted motion work, but
the policy includes two guidelines: there must be work within the individual's
craft that is in line with the imposed restrictions, and an individual cannot
be placed on permanent light duty status. Carrier's .physician determined that
Claimant would have to work with medical restrictions for an unspecified time
period. Because of the unspecified time period and because no available job
met Claimant's restriction on lifting, Carrier could not provide Claimant with
work.
Carrier contends that when its physician reexamined Claimant in
March, 1985, its physician determined that the lifting restriction should remain in effect. Carrier then informed the Organization that if Claimant's condition improved so that the restriction was lifted, Claimant could be returned
to service. Carrier argues that this indicates it is not willfully depriving
Claimant of employment. Carrier further asserts that Claimant still is medically disqualified, and there is no indication of when he may be returned to
work. Carrier argues that no employer can be expected to provide light duty
work, even if it were available, for an indefinite time.
Carrier contends that this Board has held that it is without authority to change health standards, nor will it substitute its own judgment for
that of a physician. Carrier argues that it has taken Claimant's long service
into account, but no available work meets Claimant's medical restrictions.
Carrier asserts that it is not required to create a job for an employee who
cannot perform the required duties. Carrier therefore contends that the Claim
is without merit and should be denied.
This Board has reviewed the evidence in this case, and we find that
the Organization has not met its burden of proof that there was a full-time
light-duty position available which the Claimant was physically able to handle
and which fulfilled the restrictions set forth by the Claimant's doctor. The
decisions of this Board are clear that the Carrier is not obligated to make a
job for an employee who cannot perform the required duties of his regular job.
(See Second Division Award 8799.) Since the Organization has not pointed to a
job which the Claimant could have performed, this Claim must be denied.
Form 1 Award No. 11406
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ver - Executive Secretary
Dated at Chicago, Illinois this 6th day of January 1988.