STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Erie-Lackawanna Railroad Company:
EMPLOYES' STATEMENT OF FACTS: This dispute involves an employe who-in spite of a favorable medical opinion and report by his personal physician, has been withheld from service since July 5, 1966, allegedly because of his physical condition, without being seen or examined by the Railroad Company's Chief Surgeon, who is the person responsible for the employe not being allowed to return to service.
On December 2, 1965, Signal Maintainer Francis W. Lowell was disabled with coronary thrombosis and was treated at Wyoming County Community Hospital, Warsaw, N. Y. for 3 weeks.
After discharge from the Wyoming County Hospital, his recovery was excellent, and on July 5, 1966, following an examination by Doctor D. R. Insley, who had attended him during his illness, he wrote the Carrier as follows: (Brotherhood's Exhibit No. 1)
In a letter dated July 11, 7.966, Carrier informed Mr. Lowell he had been physically disqualified for all service since June 20, 1966 by Chief Surgeon, Dr. W. E. Mishler. (Brotherhood's Exhibit No. 2)
This report was forwarded to Carrier's Chief Surgeon Dr. W. E. Mishler, who with these facts before him and his knowledge of the nature of claimant's duties and responsibilities as a Signal Maintainer, Dr. Mishler sent the following letter to the Division Engineer at Buffalo, New York, disqualifying Mr. Lowell for all service.
Mr. Lowell and General Chairman W. D. Wilson were notified of the disqualification under dates of July 11 and 21, 1966 respectively (Carrier's Exhibits A and B.)
On November 1, 1966 the instant claim was filed with G. V. Milanoski, Signal Supervisor, Buffalo, New York. Claim was denied on November 28, 1966 and thereafter handled on appeal up to and including Carrier's highest officer. The case was discussed in conference on March 3, 1967 and denied. Attached as Carrier's Exhibits C through E are copies of subsequent handling of the case on the property.
There is no dispute between the claimant's family physician and the chief surgeon concerning the medical facts of claimant's condition. That this is so is evidenced by the fact that the Organization did not process this case under established procedure as set forth in the "Understanding on Physical ReExaminations" found on Page 50 (Carrier's Exhibit F) of the applicable agreement.
OPINION OF BOARD: On December 2, 1965, Claimant suffered a coronary occlusion. He was hospitalized for three weeks and returned home to convalesce. On July 5, 1966, Claimant wrote Carrier that he had been discharged by his physician who declared him ready to assume his regular duties.
Claimant then learned that the Chief Surgeon-who had not examined him-had written a letter of disqualification during the preceding month.
The Chief Surgeon's actions in this matter are not altogether different from those in Award 16926 (McGovern) when this Board held that he acted in an arbitrary manner.
However, the Record reveals no effort to follow the procedure provided in the Agreement Addendum "Understanding on Physical Reexaminations."
We do not know if, as in Award 16926, the Chief Surgeon would have indicated a refusal to follow the Agreement, which provides:
This course of action, to be initiated by the General Chairman, was not followed, and this Board must deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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