Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11518
SECOND DIVISION Docket No. 11115
88-2-85-2-242
The Second Division consisted of the regular members and
in addition Referee Hyman Cohen when award was rendered.
(Brotherhood Railway Carmen of the United States and Canada
PARTIES TO DISPUTE:
(Seaboard System Railroad
STATEMENT OF CLAIM:
1. That the Seaboard System Railroad, hereinafter referred to as the
Carrier, was arbitrary and negligent in their actions, and in violation of
Rule 34 of the Agreement when they failed to properly handle a return to work
release issued for Carman D. C. Jackson, hereinafter referred to as the Claimant, by his personal doctor on September 21, 1984.
2. And accordingly, the Carrier should be ordered to compensate
Claimant for eight (8) hours' pay at straight time rate for each day he was
held out of service subsequent to September 26, 1984, and continuing until he
was allowed to return to service on October 12, 1984, as the result of said
violation.
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 Claimant is employed as a Cayman at the Carrier's Osborn yard
facility in Louisville, Kentucky. Due to personal illness, the Claimant was
granted a leave of absence on March 27, 1984. The Carrier's Chief Medical
Officer approved the return of the Claimant to service on October 12, 1984.
On behalf of the Claimant, the organization seeks eight (8) hours'
pay straight time for each day he was held out of service subsequent to September 26, 1984 and continuing until October 12, 1984, when he was returned to
service. In support of the instant claim, the Organisation asserts that the
Carrier was arbitrary in its actions when it withheld the Claimant from service more than five (5) days after notification had been given to the Carrier
that he had been released by his doctor to return to work.
Form 1 Award No. 11518
Page 2 Docket No. 11115
88-2-85-2-242
After an extended leave of absence, Form
7300
is to be completed by
an employee's doctor and submitted to the Chief Medical Officer so that a
determination could be made as to whether or not, and when an employee should
be permitted to return to work. The Claimant secured Form
7300
and on September 19, 1984, the Claimant's doctor, signed the Form.
The record does not support the Organization's claim that the Claimant "presented it [Form
7300]
to Carrier officials and notified them that he
was ready to return to work," on September 21, 1984. The identity of the
Carrier officials, and such factors as the "where and when" of presenting Form
7300
on September 21 is not disclosed by the Organization. On the other hand,
Form
7300
is stamped "Received September 26, 1984 Medical Department." Accordingly, the Board is persuaded that Form
7300
was mailed to the Carrier's Chief
Medical Officer and received by the Medical Department during his absence on
September 26, 1984.
In submitting the Form to the Medical Department, the Claimant's
doctor failed to disclose some of the information called for by the Form.
Although the Form had been signed on September 19, 1984 and indicated that the
Claimant was qualified to safely return to his regular assignment, the date he
was to do so, was not supplied. In addition, the treatment that had been
received by the Claimant, the medication prescribed for his anxiety depression
and seizure disorder were not set forth, although such information was called
for, by Form
7300.
Upon returning to his office, on October 1, 1984, the Carrier's Chief
Medical Officer wrote a letter to the Claimant's doctor indicating that due to
the "potentially hazardous nature to himself and other employees" he was
"unable to return (the Claimant) to service using the short Form
7300."
In
his letter he requested "full details regarding the seizure disorder, prognosis and all medications being taken." He was "particularly interested in
what diagnostic studies have been performed to establish the seizure disorder
diagnosis and their results." He concluded his letter by stating that until
he hears from him "in this regard" he "will be forced to withhold" the Claimant from service.
On October 5, 1984, the Claimant's doctor wrote back indicating that
the Claimant has been "seizure-free" and that the drug Dilantin which he had
taken on a trial basis can be discontinued. This letter was received by the
Carrier on October 12, at which time the Carrier's Chief Medical Officer
approved the return of the Claimant. Moreover, by telephone, the Carrier was
notified by the Claimant's doctor of the Claimant's release to return to work.
This Board cannot conclude that the Carrier was negligent because the
Carrier Officer sent his letter to the Claimant's doctor on October 1, 1984,
some five (5) days after the letter was received by the Medical Department.
In arriving at this conclusion, the Board cannot overlook the fact that Form
7300
was dated on September 19, 1984 after which it was apparently mailed by
the Claimant's doctor and received by the Medical Department some seven (7)
days later, on September 26, 1984.
Form 1 Award No.
11518
Page 3 Docket No. 11115
88-2-85-2-242
The Organization indicates that although the Carrier's Chief Medical
Officer wrote to the Claimant's doctor on October 1, the letter was postmarked
on October 5 and received by him on October
9, 1984.
No evidence of the postmark is in the record. It should be noted that on October
5, 1984
the Claimant's doctor sent a letter to the Carrier's Chief Medical Officer supplying
him with the information that he requested, which was not disclosed on Form
7300. The Board has inferred that sometime before October
5,
the Claimant's
doctor was notified to provide details on the Claimant's treatment, medication
and diagnosis on his seizures. Moreover, the Organization has failed to explain why he sent his letter on October
5,
providing the very "details" the
Carrier's Chief Medical officer requested, in his letter, dated October 1,
1984.
In light of these considerations, the Board has concluded that the
Carrier's Chief Medical Officer sent a letter to the Claimant's doctor on
October 1.
Furthermore, it may very well be that on October
12,
by telephone,
the Claimant's doctor provided the Medical Department with the same information that was set forth on Form 7300 which was received by the Medical Department on September 26,
1984.
However, it must be underscored that on October
12,
1984,
the Claimant's doctor's letter, dated October
5
was received by the
Medical Department. As already established, his letter, complied with the
Carrier's Chief Medical Officer's request which was set forth in his letter
dated October 1,
1984.
Thus, it was the Claimant's doctor's October 5 letter
in conjunction with the partially completed Form 7300 which formed the basis
of the Carrier's decision to approve the Claimant's return to work on October
12,
1984.
In light of the Claimant's illness, which included treatment for
seizures, the Carrier's Chief Medical Officer's October 1,
1984
letter in
which he sought various details that were not supplied on Form 7300 is
consistent with the Carrier's "obligation to all of its employees, including
the Claimant, to make reasonably certain that an employee is physically
capable of performing his duties." Second Division Award No. 7087. Based on
the record, the Carrier has acted in good faith. Second Division Award No.
5652.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J.'Pew- Executive Secretary
Dated at Chicago, Illinois, this 3rd day of August
1988.