THIRD DIVISION
(Supplemental)
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Pennsylvania Railroad, that:
EMPLOYES' STATEMENT OF FACTS: Prior to December 11, 1960, Mr. W. H. Bump was the regularly assigned relief Block Operator at "AJ" Block Station, Kiski (Kiskiminetas) Jet., Pennsylvania, with tours of duty on first shift iSundays and Mondays, second shift Tuesdays and Wednesdays, and third shift Thursdays. Rest days of this assignment were Fridays and Saturdays. This position is a "Group 2" position covered by the Telegraphers' Agreement with the Carrier.
Prior to December 4, 1960, G. W. Witherup was a regularly assigned train dispatcher on third shift in Pittsburgh, Pennsylvania, assigned to work five days per week with two rest days off. The assignment is designated as
The claim was denied by the Supervising Operator in letter dated January 20, 1961.
Under date of January 23, 1961, the District Chairman listed a claim identical to that quoted at the beginning of this Submission with the Superintendent Personnel Pittsburgh Region, who by letter dated March 8, 1961, advised the District Chairman, in part, as follows:
Subsequently, at the request of the District Chairman, a Joint Submission covering this matter was prepared, a copy of which is attached as Exhibit "B".
At a meeting held on October 5, 1961, the General Chairman discussed this claim with the Manager, Labor Relations, the highest officer of the Carrier designated to handle such disputes on the property. In a letter dated October 27, 1961, the Manager, Labor Relations denied the claim.
Therefore, so far as the Carrier is able to anticipate the basis of this claim, the question to be determined by your Honorable Board is whether Witherup's displacement of W. H. Bump, Jr., was proper and in accordance with Regulation 2-S-1(d).
OPINION OF BOARD: The facts in this instance are that Train Dispatcher Witherup, after being displaced on December 4, 5960 by a senior train dispatcher, displaced Block Operator Bump at "AY' Block Station, Kiski Junction, Pennsylvania on December 11, 1960.
The Organization contends that Employe Witherup should have been placed on the extra list rather than be permitted to displace the Block Operator at "AJ" Block Station.
The Carriers' position is that Employe Witherup was forced to leave his position of train dispatcher by reason of being physically disabled and
therefore Regulation 2-S-1 (d) authorized Employe Witherup to displace said Block Operator at "AJ" Block Station.
The question resolves itself down to whether or not Employe Witherup was "physically disabled" so as to permit him to exercise his accumulated seniority to displace the Block Operator at "AP Block Station.
Carrier admits that it has the burden of proving that Employe Witherup was physically disabled in order to show that the agreement herein was not violated.
In support of its position that Employe Witherup was physically disabled, Carrier submitted copy of medical report, marked "Exhibit A", covering medical examination of Employe Witherup, dated December 7, 1960, signed by W. M. Woodward and a Dr. Moriarty. In said medical report, under "Remarks" was written the following:
The Organization contends that said medical report is not a bona fide medical report in that it does not show a specific disability but only a conclusion, and therefore said report amounts to a "sham" medical report; that the Carrier has failed to sustain its burden of showing that Employe Witherup was "physically disabled" and as a result the agreement was violated when Witherup was permitted by the Carrier to bump the Employe at "AJ" Block Station.
Examination of said medical report shows it to be very vague and sketchy. The report does not disclose any facts upon which the conclusion of "chronic disability" is based. Further, said statement of "chronic disability", without anything further, is a conclusion on the part of the person making such an opinion-statement.
This Board cannot give weight to such a medical report or opinion inasmuch as it is not supported by sufficient evidence as to the facts upon which it is based.
Therefore, it is the conclusion of this Board that the Carrier failed to sustain its burden of showing that Employe Witherup was "physically disabled", and as a result thereof the Carrier violated this Agreement. Thus, the Claim will be sustained.
THIRD DIVISION
(Supplemental)
INTERPRETATION NO. 1 TO AWARD NO. 14735
DOCKET NO. TE-13772
Upon application of the representatives of the Employes involved in the above Award, that this Division interpret the same in the light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made:
This request for interpretation comes from the Organization's position that the Carrier failed to consider Regulations 4-G-1; 4-J-1; 4-M-1; 4-R-1; and 8-M-1 of the Agreement in computing compensation due Claimants by virtue of this Board's decision in sustaining the claim of Claimants.
The Claimants herein are entitled to be "made-whole" for any monetary loss they might have suffered due to the violation of the Agreement, and any monetary loss is to be determined by the amounts of money they would have earned if the violation did not occur, minus the amount of money they actually earned from the date of the violation to the date of compliance with this Board's order.
Further, there was no evidence in the record that Claimants were required to suspend work for the purpose of absorbing overtime in violation of Regulation 4-G-1; and no evidence was shown that Claimants were required to work on their assigned rest days in violation of Regulation 4-J-1; and no evidence was adduced to show that Claimants actually incurred expenses in violation of Regulation 4-R-1; and no evidence was, in the record to show that Claimants were requested to use their privately owned automobiles for company use in violation of Regulation 8-M-1. Referee Paul C. Dugan, who sat with the Division, as a member, when Award No. 14735 was adopted, also participated with the Division in considering the application for interpretation.