Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11429
SECOND DIVISION Docket No. 11371
88-2-87-2-15
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
STATEMENT OF CLAIM:
1. That Carman N. H. Hartman, Jr. was unjustly and excessively withheld from Carrier service after he notified that he was returning from sick
leave, in violation of Rules 22 and 37 of the Shop Crafts Agreement.
2. Accordingly, Hartman is entitled to be compensated in the amount
of his current guaranteed rate of pay for each work day during the period
February 19, 1985 to March 19, 1985 and for other miscellaneous costs in lieu
of the violations.
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.
The facts in this case are that Claimant had no use of his left eye
since 1936. On December 4, 1984, Claimant had corrective surgery in the form
of a lens implant. On February 19, 1985, Claimant returned from sick leave
and presented himself as released and able to assume his duties as a Carman.
He presented as medical release his physician's prescription for eye glasses
which indicated vision of 20/100+ with correction. Carrier indicated that
such was not an acceptable release to return to duty. It scheduled a returnto-duty physical that same date and informed Claimant to secure the necessary
medical release to return to duty from his physician. Carrier received same
by letter of March 13, 1985, and released Claimant for duty on March 18, 1985.
Claimant returned to work on the following day.
Form 1 Award No. 11429
Page 2 Docket No. 11371
88-2-87-2-15
The Claim of the Organization is that Claimant presented a release to
work form from his attending physician indicating he was able to return to
service. Failure of the Carrier to permit Claimant to return to work until
March 19, 1985 was a violation of Rules and past Awards that provide for five
(5) days as sufficient time for Carrier's decision. The organization points
out that Claimant made three trips and paid express mail costs. The Organization further argues that the Carrier was arbitrary, capricious and abused
its discretion.
As in all such cases the Carrier has a right to require that an
employee show proof that he is fit to return to work after a medical leave.
The Carrier can accept such proof or require a medical exam. If unsatisfactory, the Carrier may request additional information or exams that it deems
necessary, but it must take action to expedite the employee's return to work
or issue a decision that the employee is unfit.
In the instant case, the Carrier found the physician's prescription as an unacceptable release for work. No evidence of record indicates
that the Carrier took any action thereafter by telephone or letter to obtain
desired information within a reasonable time. Rather, the Claimant was requested to obtain information and there is evidence of record that he worked
toward that end. There is no doubt that both must expedite the process.
Although the Carrier required Claimant to take a physical, it requested no
additional medical tests and took no other action of record until March 8,
1985.
The Carrier's exhibits of the February 14, 1985 prescription and
Claimant's physician's letter of March 13, 1985 were referenced in the record
on property. The letter indicates that Carrier contacted Claimant's physician
by telephone on March 8, 1985 and was fully aware that Claimant's physician
approved his return to work at that time. Nevertheless, the Carrier took no
action until March 18, 1985 after receipt of the physician's letter of March
13, 1985.
In the case at bar this Board finds that the Carrier erred in not
making its own evaluation of fitness within an appropriate time frame. That
time began in these instant circumstances when Carrier found Claimant's
release as no release at all, or unsatisfactory. Carrier took no action whatsoever to personally contact Claimant's physician to obtain the relevant information and clarify any concern. Nor, having given an examination which it
did not see as determinative, did it require a more specialized examination to
reach a final decision. Carrier determined to make the final decision based
upon the Claimant's physician and yet made no attempt to clarify the situation. If, as evidence indicates, the Carrier's Medical Department could call
on March 8, 1985 and receive clearance, it could have called within a reasonable time of Claimant's presentation to work on February 19, 1985.
In these particular circumstances, the Board finds that the Carrier
acted in an inappropriate manner. As to the appropriate remedy, the Board
finds that Claimant is entitled to pay beginning after five (5) working days
following the physical examination conducted by Carrier on February 19, 1985
and continuing until Claimant was returned to work (Second Division Awards
6569, 6278, 6363 inter alia). There is no Agreement support for the additional claimed costs and such is therefore denied.
Form 1 Award No. 11429
Page 3 Docket No. 11371
88-2-87-2-15
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 24th day of February 1988.