Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award
No. 12050
SECOND DIVISION Docket No. 11942
91-2-90-2-50
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT OF CLAIM
:
1. The Carrier improperly held Carman W. G. Johnson, Spartanburg,
South Carolina, out of service.
2. That accordingly, the Carrier be ordered to pay Carman Johnson
for all time lost from January 11, 1989 through January 26, 1989.
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 record shows that, because of a back problem, the Claimant was
absent from December 14, 1988, onward. On January 11, 1989, he provided the
Carrier with a return to work slip from his personal physician, dated January
10, 1989. However, the Carrier concluded that further medical testing was
required to determine the Claimant's fitness for duty.
It is well-established that the Carrier may make fitness for duty
decisions, if reasonably based. We find that to be the case here. Therefore,
the only issue before us is whether the Carrier took an excessive amount of
time to examine the Claimant and, subsequently, allow him to return to work.
While the Carrier is required to move with reasonable speed after receipt of
information that the employee is ready to return to work, for self-evident
reasons, a set period of time has not been established. The facts and circumstances of each case may differ and they must be viewed on their own merits
and within the general framework of past decisions, where applicable.
Form 1 Award No. 12050 _
Page 2 Docket No. 11942
91-2-90-2-50
In this case, the Carrier gave no substantive explanation on the
property of why it took from January 11, 1989, until January 26, 1989, to
obtain an appointment for the Claimant's medical evaluation. Moreover, it
already had in hand a professional confirmation that the Claimant was able to
return to work. The Board also notes that the Claimant was examined by the
Carrier's designated person on January 26, 1989, and was cleared by that person to return to work the next day.
In view of all of the foregoing, we agree with the Organization that
there was undue delay in returning the Claimant to work. With respect to the
damages issue, we again adopt the position of numerous Second Division Awards
that found five days to be a reasonable amount of time to conduct an examination after a request to return to work is received (see Second Division
Awards 11275, 11345, 11557, 10816, 7131 and 7474). The Claimant is awarded
backpay for all time lost from January 16, 1989 through January 26, 1989.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT Board
By Order of Second Division
Attest: _
-~.
<L**
4e.-4e
lancy J.r - Executive Secretary
Dated at Chicago, Illinois, this 15th day of May 1991.
CARRIER MEMBERS'
CONCURRING & DISSENTING OPINION
TO
AWARD 12050, DOCKET 11942
(Referee Muessig)
The Majority in Award 12050 properly found that the Carrier may make
fitness and duty decisions if reasonably based, and the only issue before the
Board was whether the Carrier took an excessive amount of time to examine the
claimant and allow his return to work. It further found that the Carrier is
required to move with reasonable speed after receipt of information that the
employee is ready to return to work, but that no set period of time has been
established.
After finding that the facts and circumstances of each case may differ
and must be viewed on its own merits, the Majority proceeded to penalize the
Carrier for exercising its right to have an employee examined and make a
fitness decision for return to duty. It did so on the basis that
" ....Carrier gave no substantive explanation on the property of why it took
from January 11, 1989, until January 26, 1989, to obtain a appointment for
the claimant's medical evaluation." Review of the record of handling on the
property adduced to this Board reveals that no foundation exists for the
Majority's finding that no substantive explanation was given on the property.
The record indicates that Carrier determined that based upon claimant's
past record of health problems it could not allow claimant to return to work
until he had a test on a B-200 Machine at an orthopedic surgeon's office,
that immediately upon receipt of a statement from claimant's personal
physician that he was released for return to duty, Carrier sought to make an
appointment with an orthopedist having the only available B-200 Machine in
the area, and that the earliest appointment available was January 26, 1989.
- 2 -
Claimant was examined on January 26, 1989, and after evaluation, was
law
returned to service on January 27, 1989. Certainly on this record Carrier
moved with reasonable speed and should not be penalized for exercising its
rights which the Majority clearly found it had.
For all the reasons noted above, we are constrained to dissent to that
part of the Award penalizing the Carrier for the loss of time from January
11, 1989, through January 26, 1989.
J. E. Yost
M.~lng
Ul
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