Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11641
SECOND DIVISION Docket No. 11273
89-2-86-2-87
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: _
1. That the Consolidated Rail Corporation violated the controlling
agreement, on July 31, 1985, when by letter dated July 31, 1985, Manager-Labor
Relations J. F. Glass denied Groundman Harkins request for a medical examination therefore preventing him from returning to active service.
2. That, accordingly Groundman Harkins be compensated, commencing
July 31, 1985 to September 15, 1985, a days pay for each day, including
overtime, that he would have earned had the Consolidated Rail Corporation not
violated the controlling agreement.
3. That Groundman Harkins be granted all other benefits that would
normally have accrued to him had the Consolidated Rail Corporation not violated the controlling agreement during the aforementioned period.
4. That the Consolidated Rail Corporation, forthwith allow Groundman
Harkins to take a medical examination in order that he may return to active
service.
5. This claim, as provided for under Rule 4-P-1 (i), is a continuous
claim, therefore commencing with September 16, 1985 and each day thereafter
that Groundman Harkins is prevented by Consolidated Rail Corporation from
returning to service, claimant Harkins is to be compensated and granted benefits as set forth in No. 2 and 3 above.
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.
Form 1
Page 2
Award No. 11641
Docket No. 11273
89-2-86-2-87
On June 18, 1985, the Claimant wrote a letter to the Carrier's
Manager of Labor Relations that he wished to return to his job as Groundman,
Third Rail, Electric Traction at the Carrier's Mott Haven, New York facility.
In this letter he explained that he had established seniority on August 10,
1977, and was injured on the job on July 9, 1980, and was party to an "out of
court" settlement in 1982. He explained that he was attaching to this letter
a permission to return to work from his own doctor who had given him a physical. He stated that he needed a "...physical and a release from Conrail to
return to my original job...which is now with Metro-North." On July 31, 1985,
this letter was answered. In this letter the Carrier's officer states the
following:
"We have reviewed this matter and agree that
no written release of employment rights was
obtained at the time of settlement of your case.
However, we find that the monetary settlement of
...made on August 16, 1982 in connection with
your injury, was predicated upon your contention
that you were rendered permanently and totally
disabled from performance of the duties of your
position with the Corporation; and that those
monies were awarded based on past lost earnings
as well as future potential earnings.
Under the conditions outlined above, we hold
that you are estopped from now contending your
disability no longer exists.
Accordingly, your request for medical examination preparatory to return to our service is
denied."
Upon receiving this denial the Claimant referred the matter to his Organization and on September 15, 1985, it filed a formal claim on his behalf, as
outlined in the Statement of Claim of this case. In this claim, the Organization argued that the settlement implied no release of the Claimant's employment rights. This claim was answered by the same Carrier officer under date
of November 19, 1985, with basically the same arguments found in his earlier
letter to the Claimant. In this latter denial, however, the Carrier officer
appears to argue that the claim filed was inappropriate because the Claimant
was "...no longer an employee of Consolidated Rail Corporation." Therefore,
he continues "...it is our decision not to entertain your letter in any way,
shape or form as a claim under the Schedule Agreement." Nevertheless, as a
"courtesy" this latter letter was to be considered the Carrier's "denial" of
the claim. Absent resolution of the claim after conference and additional
appeals this case was docketed before this Board.
Form 1 Award No. 11641
Page 3 Docket No. 11273
89-2-86-2-87
A preliminary procedural question must be resolved first of all. The
Organization alleges, on the property, that the Carrier was in violation of
the time limits of the Agreement because there were more than sixty (60) days
between the date the claim was filed on September 15, 1985, and the denial of
the same on November 19, 1985. The Board notes from the record that this
request for forfeiture is found in a document submitted to the Carrier with
signature of the President of the Local who had filed the claim in September.
The Organization's Exhibit D is a copy of a letter written by the Carrier
Senior Director of Labor Relations to the Organization in which it is noted
that the same claim had been discussed "on September 12, 1985" and that the
"...Time limits outlined in Rule 4-P-1(f) will be extended accordingly." It
appears that the case was being handled concurrently by different officers of
the Organization with the Carrier and that there had been an agreement to
extend the time limits. This is common procedure in cases such as this which
have inherent complexities which must be studied and discussed by the parties
in an effort to find resolution thereof. In view of the evidence of record
the procedural objection raised by the Organization must be dismissed, and the
conclusions of the Board must be based on the merits of the claim.
In regards to the Carrier's procedural argument that the Claimant had
previously forfeited all of his employment rights due to a Court settlement
resulting from a personal injury case, review of the record before this Board
fails to support any such position.
Turning to the merits of this case, the facts indicate the Claimant
was severely injured on July 9, 1980, when a pulley pulled loose from a wall
and struck him in the face while he was on duty. The pulley weighed some 25
pounds. At the time of his injury the Claimant was working the Park Avenue
tunnel near 72nd Street, New York City. In June of 1981 a complaint was filed
on behalf of the Claimant in the U.S. District Court, Eastern District of
Pennsylvania against Conrail. The action was brought under the Federal Employer's Liability Act and the Railroad Safety Appliance Act. The basis of the
complaint was not only the severe injury received by the Claimant in July of
1980, but also because he had sustained earlier on-the-job injuries of a considerably severe nature on December 21, 1979. The latter accident occurred at
the Carrier's Brooks Street Crossing, Croton Harmon, New York. The complaint
stated that the "...plaintiff has been permanently injured and has lost large
sums of money which he would otherwise have made ...(had)...his earning capacity (not) been damaged and impaired." On August 16, 1982, the Claimant
signed a General Release thereby releasing Consolidated Rail Corporation from
any additional liability and claims. The issue here is whether the Claimant
then had right, at future date, to request a return to work to his old position. The argument of the Carrier is that the Claimant was estopped from so
doing by the settlement.
Form 1 Award No. 11641
Page 4 Docket No. 11273
89-2-86-2-87
The Board has closely studied the record before it. This record,
shows that the settlement was made after the Complaint was filed with the U.S.
District Court and that the latter states explicitly, in unequivocal language,
at two different points, that the Claimant had been "permanently injured."
The Board must only conclude, therefore, that there was a close relationship
between the settlement and this allegation in the Complaint. This happened in
1982. Slightly less than three years later the Claimant then effectively
argues that he is no longer permanently injured and as evidence presents a one
sentence statement initialed by a General Practitioner which is dated July 9,
1985.
The doctrine of estoppel has been outlined in Third Division Award
6215 by means of the following language:
"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
effort to establish against the same party a
second claim or right inconsistent with his
earlier contention."
This doctrine has been espoused and applied to claims similar to the instant
one in numerous Awards. by various Divisions of the Adjustment Board and by
Public Law Boards (See, for example, First Division Award 21066; Second
Division Awards 1672, 7976, 10754, 11187; Third Division Awards 24298, 25498;
PLB 3897, Award S. This Division recently released Award 11621 which dealt
with a circumstance comparable to the instant one. In that Award the Board
stated that evidence and allegations presented and made before the court in
order to win an award could not be nullified by the Claimant at a later point
simply because it was to his advantage to do so. The only difference between
this case and that one is that here an out-of-court settlement was made. In
both cases there were pleadings of permanent injury.
A full review of the record before it leads the Board to conclude
that the instant claim is of the type to which the doctrine of estoppel is to
be applied. Arbitral ruling with respect to this doctrine are also consistent
with court precedent. For example, in Jones v Central of Georgia Ry Co (USCD
ND Ga) 48 LC par. 1856 (cited in Second Division Award 11621 the court stated:
"It seems to this Court the applicable rule of
law is firmly established that one who recovers
a verdict based on future earnings, the claim of
which arises because of permanent injuries,
estops himself thereafter from claiming the
right to future re-employment, claiming that he
is now physically able to return to work."
On merits the claim cannot be sustained.
Form 1 Award No. 11641
Page 5 Docket No. 11273
89-2-86-2-87
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of January 1989.
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