STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Penn Central Company, that:
Claimant K. M. Day was relieved of his duties as leverman in CT Tower, effective March 2, 1963, pending a hearing as to whether he had violated Rule K-1, as a result of an altercation that occurred in the Tower. A hearing was held on March 27, 1963, and on April 6, 1968 the Carrier restored Mr. Day to service, pending a physical examination. On June 18, 1968, the Carrier's transportation supervisor notified Claimant Day that the medical director had disqualified him physically from work. In January, 1964, Claimant Day was returned to work and continued to work without difficulties until the Carrier again took him out of service on June 17, 1966, pending a special examination. In the interim Claimant Day had filed a civil law suit for damages in the District Court of the United States for the Northern District of Ohio. It wasn't until the judgment had been rendered for Mr. Day that the Carrier again took him out of service in 1966.
Has the Carrier violated the Agreement when it removed K. M. Day from service on June 17, 1966, without just cause.
Did the Carrier violate the Agreement when it failed to agree to a selection of a three-doctor board to re-examine Kenneth Day as to his physical qualifications to return to service.
Our position is still as stated in my letter of December 30th, 1966; that if and when Mr. Day can furnish a qualified doctor's report that he has fully recovered from this condition and is not subject to future recurrences of these conditions and problems we will meet with you to review the case with a view towards arranging for an adequate neutral examination."
While this matter has been the subject of subsequent discussions between the Organization's General Chairman and Carrier's representatives the Organization has not submitted any evidence to indicate that there is a medical dispute as to Mr. Day's physical condition.
OPINION OF BOARD: On June 17, 1966 Carrier removed Claimant, an Operator-Leverman, from service pending a special examination by a psychiatrist, Nicholas Demmy, M.D, As a result thereof, Claimant requested a hearing under Article 32(k) of the Agreement governing the parties to this dispute. Carrier advised Claimant by letter dated September 30, 1966 that he was permanently disqualified as physically unfit to work. Claimant appealed Carrier's said decision in regard to his disqualification, requesting the services of a neutral doctor to examine Claimant in regard to his physical fitness to return to work, and also furnished Carrier with a copy of a report of R. R. Gould, M.D. concerning his examination of Claimant. T. C. Robinson, General Chariman, was advised by letter, dated December 30, 1966, from C. L. Stalder, Carrier's Assistant General Manager Labor Relations, as follows; after commenting that there is no medical dispute as to the question of whether Claimant has a schizophrenic condition, went on to state:
"If and when Mr. Day can furnish a qualified doctor's report that he has fully recovered from his condition and is not subject to future recurrences of these conditions and problems we will meet with you to review the case with a view toward arranging for an adequate neutral examination."
The General Chairman requested Benjamin Berger, M.D., Neuropsychiatrist at the Veterans Administration Hospital, Cleveland, Ohio, to answer Carrier's request for such assurance that Claimant's impulsive act will not occur again in the future, and Dr. Berger made a written report to the General Chairman dated March 1, 1967, in which he stated in part:
This is the type of case that is always extremely difficult to evaluate. This man has always been a conscientious, perhaps overreligious individual, with a strong feeling of right and wrong. Whether this is normal, or whether this represents residuals of a schizophrenic paranoid process is rather difficult to ascertain. The impulsive aggressive behavior that has happened in the past appears to be completely out of keeping with his normal picture. Clinically I feel that there may very well be paranoid problems present in this man that could not be detected during the course of an examination. He is unemployed at the present time because the company refuses to take him back until assurance can be given through medical channels that this impulsive act will not occur again in the future. Under present circumstances and in view of past history, this is certainly impossible."
"REVIEW OF RECORDS: The patient was discharged from the Marine Corp. for psychiatrically medical reasons with a statement that he had aggressive and psychotic outbursts at that time. Subsequently while working for the New York Central Railroad, eight years ago, he was involved in an altercation while working in the tower. The second altercation occurred in March, 1963, which led to the litigation.
He described this that a fellow worker went out of his mind and lost control. 'He slapped me down and my head hit the bottom of my machine.' Mr. Day states he was out for a moment, up and around, and then was taken to Lutheran Hospital. He had a concussion and was sent home. Subsequent to this he was hospitalized at Cleveland Psychiatric Institute for a three months period where a diagnosis of schizophrenic reaction, paranoid type, chronic, in
acute, relapse, was made. The delusional material he expressed at that time was that he talked with the 'Lord'. He entertained suicidal thoughts with religious pre-occupation and grandiosity at that time. Subsequent to discharge from the hospital and with re-establishment of his control, he returned to work and has remained stationary since.
"No psychotic manifestations are present at the time of this examination. Certainly, there is no impairment in his occupational capacity or in his social adjustment. Basically, he does have a rigid per. sonality structure with perhaps a strong leaning towards religion as well as a tendency to react poorly to the stress of injury. Without the benefit of hospital records, it is my impression that the diagnosis made at the Cleveland Psychiatric Institute was that of a Schizophrenic Reaction. At this time he is in full remission. From a psychiatric point of view, there is no impairment in his occupational and social adjustment, and for this reason there is no contraindication to his return to work at his former job."
there is no rule in the applicable Agreement providing for selection of a three doctor board to re-examine * ' ' as to physical qualifications of an employe; that the organization is seeking to have Carrier relinquish its right to establish and maintain physical standards for its employes to a neutral physician or to a three doctor board; that there is no dispute as to the present physical condition of Claimant.
First, Carrier's member of this Board in the oral panel discussion before this Board argued that Article 82(f) as relied on by the Organization, does not apply to physical disqualification but applies only to discipline cases, and since this is not a discipline case, the claim should be dismissed. With this contention we do not agree. The Organization is relying on Article 32(k), as shown by the record, and said Article 82(k) does not refer to "discipline" as such, but refers to matters other than discipline. This is seen by the reading of said Article 32(k), which reads as follows:
Second, in regard to Carrier's contention that there is no rule in the Agreement providing for the selection of a three doctor board to re-examine an employe as to his physical qualifications, this Board in Award No. 14249 stated:
Thus, Carrier's contention in this regard is without merit and must be denied.
Third, Carrier strongly argues that there is no dispute as to the present physical condition of Claimant and thus no need for a three doctor board to evaluate Claimant's physical condition. We do not agree with this contention. Although it is undisputed that Claimant has been examined by a number of doctors who all found him to be suffering from schizophrenic reaction, paranoid type, Dr. Berger and Dr. Gould diagnosed Claimant to be suffering from "schizophrenic reaction, paranoid type, IN REMISSION." (Emphasis ours.) Also they found him to be competent. Both Dr. Berger and Dr. Gould concluded that there is no "contraindication" or "undue risk" in returning Claimant to his former work. Even Carrier's own selected physician, Dr. Nicholas Demmy, M.D. found Claimant to be suffering from schizophrenic reaction, paranoid type, chronic, but in recovered state, fairly well controlled. Thus, we have conflicting medical testimony as to whether Claimant is physically and mentally qualified to return to work so as to be able to perform the duties of his former position.
In view of such a conflict, a three doctor board shall be convened to determine Claimant's physical and mental qualification. Each party shall
name one doctor to the board and the third doctor shall be selected by the two doctors named by the parties herein, and the findings of the three doctor board shall be binding upon the parties. Cost of such examination shall be borne equally by bath parties.
In the event such board finds Claimant physically and mentally qualified for reinstatement, Carrier shall restore him to duty with seniority rights unimpaired but without compensation for time lost. In the event that the board finds that Claimant is physically and mentally disqualified for reinstatement to his former position, the claim shall stand denied.
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.
2. The case is remanded to the property for further handling in accordance with the findings as set forth in the opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Interpretation No. 1 to Award No. 17971
Docket No. TE-18288
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:
Carrier has applied for interpretation by this Division of its said Award No. 17971.
We have carefully reviewed the record and the Award, and we find no ambiguity in said Award. The Award clearly states that a three doctor board shall be convened to determine Claimant's physical and mental qualification. As was pointed out; in the Award, the United States Supreme Court in Gunther v. San Diego & Arizona Eastern Railway Co., 382 U.S. 257, concluded that this Board has jurisdiction in appointing a medical board of three physicians to decide for the Board the question of fact relating to petitioner's physical qualifications to act as an engineer, and the court in said Gunther case, supra, stated: