Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11497
SECOND DIVISION Docket No. 11390
88-2-87-2-49
The Second Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(The Western Maryland Railroad Company
STATEMENT OF CLAIM:
1. That the Western Maryland Railway Company violated the contractual rights of the carman claimant herein listed. This carman claimant
had his contractual rights to perform extra relief work violated whenever the
carrier required a physical examination before resuming said extra relief
work. The claimant has been monetarily and contractually deprived and the
organization has been deprived of its contractual rights under the provisions
of Rule 26 of the controlling Agreement.
2. That accordingly, Cayman George V. Plauger, Jr. be awarded twenty
(20) days renumeration at the carman's straight time rate of pay and that all
benefits which claimant lost relative to Railroad Retirement be adjusted to
indicate employment during the period 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 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 was a furloughed Cayman at Elkins, West Virginia. From Junta
4 to July 27, 1985, Claimant had availed himself of the opportunity of performing relief and/or extra work in accordance with the provisions of Rule 26 of
the Agreement which authorizes the use of furloughed employees to perform
extra and relief work. After July 27, 1985, the need for such service temporarily ceased.
Form 1
Page 2
Award No. 11497
Docket No. 11390
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Subsequently, on or about January 28, 1986, Claimant indicated a
desire to again perform extra and/or relief work under Rule 26. However,
because he had not worked for Carrier in the preceding six months, Carrier
insisted that he take and pass a physical examination before resuming the
performance of extra and/or relief work. The examination was scheduled for
and given on January 31, 1986. The results of the examination were issued anti
Claimant was approved for return to service on February 18, 1986. He eventually reported for duty on February 24, 1986.
The crux of this dispute centers around the insistence by Carrier
that a physical examination was required before Claimant could resume Rule 26
extra work, and secondly, that the subsequent delay in making the determination that Claimant was, in fact, physically qualified to resume duty was an
arbitrary delay on the part of the Carrier.
On the first issue, it is too well established to require numerous
citations relative to Carrier's right to require its employees to submit
themselves for physical examination before returning them to duty. In fact,
one of the many Awards cited by the Organization in this case is sufficient
make this point.
In Second Division Award 6629, we held:
"The issue before this Board for determination is not one of first impression. Second
Division Awards 6331, 6278 and 6363, involving
the identical parties now before us, have all
decided the issue at hand. Therein it was held
that the Carrier has the inherent right to
require employees to submit themselves for
physical examination before returning them to
work
...."
See also Second Division Awards 6569, 6700 and 6704.
On the second issue, that is, the period of time involved between
examination and release of results, this too is a well settled issue. Our
Board has consistently ruled that a Carrier is allowed a reasonable time to
evaluate the results of a physical examination. In this regard, there is no
hard and fast rule defining reasonable. Some examinations are more involved
than others. Some examinations require more testing and evaluating than
others. Weekends, rest days and holidays play a part in the determination of
reasonable. Here the time involved was from January 31 to February 18, 1986
a period of 19 calendar days. Here there is no indication of extraordinary
testing or evaluating. In short, there is nothing here to indicate that this
examination should have required any more than seven (7) calendar days to be
accomplished. We so rule, and in doing so we embrace the opinions expressed
in Awards 6569, 7472, 8113 and 10363 of this Division.
t
c)
Form 1 Award No. 11497
Page 3 Docket No. 11390
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Therefore, Claimant is entitled to 8 hours pay at the pro rata rate
for each workday that he could have worked during the period from February 7
to February 18, 1986. As for the time from February 18 to February 24, 1986,
the record indicates that this delay occurred as a result of Claimant's own
actions for which Carrier cannot be held liable.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy . Pi'Ver - Executive Secretary
Dated at Chicago, Illinois, this 15th day of June 1986.