NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Preston J. Moore, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY (LINES WEST OF MOBRIDGE)
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(a) Carrier violated rules of the Clerks' Agreement when it arbitrarily held Albert R. Davey from Service as Warehouse Foreman
at Missoula, Montana.
(b) Carrier shall compensate Davey for wage loss sustained representing a day's pay (8 hours) at rate $2.2645 per hour or $17.116
per day March 28 through April 8, 1958-8 days-total wage loss
$136.93.
EMPLOYES' STATEMENT OF
FACTS: Albert R. Davey's seniority
dates from November 17, 1919. He was displaced in a force reduction account
abolishment of the cashier's position to which he was assigned in the Missoula,
Montana freight office on March 14, 1958. He promptly filed notice of intent
to displace Mrs. Hamilton on position of Rate Clerk, effective Monday, March
17, 1958. He was denied this opportunity to assert his seniority rights over
a junior employe until he broke in and demonstrated his ability to handle the
job. During period March 17 to March 21, 1958, he broke in on the Rate Clerk's
position without pay and on the latter date notified the Agent that he would
displace Mrs. Hamilton effective Monday, March 31, 1958. Later on in the
same day, he withdrew entirely his request to exercise his seniority by displacing Mrs. Hamilton.
March 26, 1958, Davey exercised displacement rights by filing notice of
desire to displace Warehouse Foreman Massing effective Friday, March 28.
On the same date, March 26, 1958, he bid on Position No. 1, Warehouse Foreman, advertised in Clerks' Notice No. 25 dated March 21, 1958.
March 27, 1958, he was notified by Trainmaster Mealey on the telephone
that he would be required to take a physical examination before he would
be allowed to displace the Warehouse Foreman. The claimant, Mr. Davey,
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the Board is of the opinion that the Carrier was justified in its
action."
The Board
also held in Award 728 that:
"The carrier's liability for the safe operation of its transportation facilities makes it responsible for the fitness of its employes
to hold their respective positions. While this liability does not give
a carrier a license to hold employes out of service at will, where it
acts in good faith and upon facts that justify such action it is
clearly within its rights under the prevailing agreement"
Further, in Award 362 the Board held:
"The age and physical build of the complainant, the evidence as
to the character of his illness, the protracted period of that illness,
the knowledge of the carrier's officers concerning his physical condition, and the nature of the duties to be performed by him-all
these factors clearly support the contention that the requirement of
a physical examination was a reasonably necessary precaution."
Attention is also invited to Second Division Award 1397 in which the
Board held:
"In light of the record before it the Division cannot conclude
that the carrier acted arbitrarily or unjustly. Under the circumstances it was rightfully entitled to know the extent of claimant's recovery and the degree of remoteness or probability of recurrent
attacks after an undisputed illness of a serious character theretofore first manifested in August, 1944. See Awards 472, 481, 998,
1134 and 1288."
Also, in Award 839, the Second Division held:
"The evidence of record supports the following conclusions that
in the circumstances of this proceeding it was neither unreasonable nor beyond the authority of the carrier to require a physical
examination of the claimant; that the examination was made in good
faith on behalf of the carrier, in the interest of safety; . . ."
It is the position of the Carrier that under the circumstances in this
case its action in
requiring Claimant Davey to submit to a physical examination to determine his fitness to safely perform the duties required of the
position of Warehouse Foreman was fully justified and required in good faith.
All basic data contained herein has been made known to the employes.
(Exhibits not reproduced.)
OPINION OF BOARD: On March 26, 1958, a bulletin advertised a position of Warehouse Foreman (R-12). Claimant bid on the position and was
awarded the assignment. It was later cancelled. The reason given by the
Carrier was the "physical condition of the Claimant" The Carrier required
a physical examination by Carrier's local physician. That report is set forth
below:
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283
"Missoula, Montana
March 31, 1958
"James F. DePree, M. D.
Milwaukee Hospital Assoc.
1656 Medical & Dental Bldg.,
Seattle 1,
Washington
"Re: A. R. Davey, Missoula
Application- Warehouse
Foreman position
"Dear Doctor:
"I examined Mr. Davey on March 29, 1958, as you had requested
by phone. General physical findings were good. Blood Pressure 130/76;
P. 80; lungs clear; heart normal size and sounds of good quality
with no murmurs and no arrhythmia. Abdomen was normal; no
hernia; and extremities were normal.
"Upon examination of his back I found no limitation of motion;
no percussion tenderness; and no pain on extreme flexion of back or
thighs on trunk. An X-ray of the lumbar spine, one view, A.P. was
taken and nothing abnormal noted.
"Mr. Davey states that he has had no trouble with his back
for two years. He does some garden work, including spading, without
any difficulty. Also, he was hunting deer last fall and managed to
lug and drag a fair sized deer to his car in the hills without any
difficulty.
"It is my opinion that he might be able to handle the proposed
job without any trouble, but I would suggest a complete examination
('C') and a complete set of spine X-rays along with a waiver signed
by Mr. Davey.
"Yours,
"/a/ I. J. Bridenstine
I. J. Bridenstine, M. D:'
"Copy to
S. E. Herzog, Supt.
Deer Lodge, Mont."
The local physician recommended a complete examination. This was
completed and Claimant was allowed to fill the position on April 9th. This
claim was filed for 8 days lost as a result of the physical examinations.
This Board has held that when the Agreement is silent on the subject,
the Carrier has reserved the right to require a physical examination. The
Claimant had previous trouble with his back. We cannot see how the Carrier
exceeded its rights when it required a physical. The Carrier acted promptly
in giving the examination the following day. The examining physician recommended a complete physical examination. This was done in 8 days. We
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fail to see any arbitrary or capricious acts of Carrier in following that recommendation.
For the foregoing reasons, we find the Agreement was not violated.
FINDINGS:
The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this Ilth day of June 1963.