Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12386
SECOND DIVISION Docket No. 12351
92-2-91-2-149
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (formerly The Chesapeake and
Ohio Railway Company)
STATEMENT OF CLAIM:
1. That the CSX Transportation (hereinafter "carrier") violated
Rules 37 and 38 of the Shop Crafts Agreement between Transportation Communications International Union -- Carmen's Division and CSX Transportation, Inc.
(Chesapeake and Ohio Railway Company) (revised June 1, 1969) when the carrier
removed Painter D. C. Prince (hereinafter "claimant") from service for alleged
medical reasons on April 19, 1989.
2. That accordingly, the carrier be ordered to return the claimant
to service; that he be allowed compensation for all time lost as a result of
his unjust removal from service; that he be made whole for vacation rights;
loss of health and insurance benefits; pension benefits including railroad
retirement and unemployment insurance, and any other benefit of employment he
would have earned during the period of his unjust suspension; and that the
carrier allow claimant interest on said compensation and time lost at the
prime rate now in effect.
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.
Under date of April 18, 1989, the Claimant was advised by the Carrier's Chief Medical Officer that because of information received by the
Carrier from the Claimant's treating physician he was deemed medically unqualified to continue covering his assignment and his Supervisor would be
notified accordingly. On the following day the Claimant was advised by the
Plant Manager at Raceland Car Shop, Russell, Kentucky, that he was medically
Form 1 Award No. 12386
Page 2 Docket No. 12351
92-2-91-2-149
unqualified to continue his duties and he was furloughed. The Claimant was
found medically unqualified because his treating physician's medical opinion
was that the Claimant be restricted to working eight (8) hours per day. Thereafter a claim was filed on grounds that the Claimant was improperly removed
from service. Because of changing work load in the Car Shop the Claimant was
returned to work on April 24, 1989. On that date the Plant Manager informed
the Claimant that thereafter there would be "...no forced overtime" at the
Paint Shop at Raceland.
This is a companion case to Second Division Award 12385 already ruled
on by the Board. The issue at bar is whether the Carrier has the contractual
right to furlough an employee whose attending physician indicates that he
ought not to work overtime but that the employee, nevertheless, is fully able
to work a full eight (8) hour day. The contractual provisions at stake in
this case, found in Rule 11, are parallel to those of the earlier case cited
above. The differences between the two cases only lie in the facts that the
Claimants are different, the medical issue is different, and the dates of
furlough are different.
The reasoning and conclusions found in Award 12385 are incorporated
herein by reference and need not be reiterated by the Board. The claim is
sustained. All monies due to the Claimant, because of having been laid off by .rr'
the Carrier from April 19, 1989 through April 24, 1989 shall be paid to him on
pro rata basis. Interest on these monies, as part of relief requested, is
denied for the same reasons as stated in Award 12385.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
, ~ag
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 8th day of July 1992.