BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
THE CHESAPEAKE & OHIO RAILWAY COMPANY
(Chesapeake District)
STATEMENT OF CLAIM: Claim of the. System Committee of the Brotherhood (GL-7013) that:
OPINION OF BOARD: Claimant was injured while in Carrier's service and sought the assistance of an attoxncy. who advised him not to sign anything unless he was sure of its import. When Carrier instructed him to take a physical examination his apprehension about signing papers resulted in a series of ovents which culminated in his dismissal from Carrier's service.
Claimant's service with Carrier was as a laborer on its Merchandise Piers in Newport News, Virginia. His seniority date on the Transportation Department ros~eer was August 23, 1956, but his service with Carrier covers a period of twenty-three years.
Following his injury, which required a number of stitches to close, he underwent a periodic visit to the hospital for check up and control of a diabetic condition. His physician removed the stitches while he was in the hospital and certified that his diabetes was under control and that he was fit for duty.
Carrier instructed Clahnant to report for a physical examination on several occasions. Since he had bean instructed to undcrgo the examination, but had failed to do so. Carrier advised him to attend an investigation on Frday, 2lpri110, 1970, stating:
Claimant testified that he had reported to the Doctor, but that the Doctor would not examine him unless be signed some papers. Ile testified that he did not understand the nature of the papers that he was required to sign and that he was not refusing to take the physical examination, he was only unwilling to sign papers that he did not comprehend. No direct evidence from the office of the examining physician was produced at the investigation. One of Carrier's employes tes'.ified that as of April 8, at 10:35 A. M. she had been told that Claimant had not been there. Claimant insisted that he had. No attempt was made to resolve, what is a rather simple matter of proof. Carrier, instead, relied on the undisputed fact that the examination had not been completed.
However, Claimant was not charged with failure to take the examination, lie was charged with failure, to report for examination. The conclusion reached by Carrier was:
As noted, Claimant testified that he did not refuse to take the physical examination, he only refused to sign papers he did not understand. It is, as noted, undisputed that he did not take the examination. However, Carrier did not assess the discipline for not being examined, it disciplined him for failing to report to the Doctor. Carrier had the burden of proof on that question and it failed to me--t it. The evidence of record does not support the allegation that he did not go to the Doctor's office. Since that is the basis upon which his alleged insubordination was grounded, and substantial proof of that offense was not adduced, Carrier's decision must be reversed by this Board.
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 Caixrer and Empioyes within the meaning of the Railway Labor Act, as approved June zl, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute invorved herein; and