NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Robert VT. O'Hrien, Referee
STATEMENT Off' CLAIM : Claim of the General Commitire of the Brotherlaood of Railroad Signalmen o~: the Erie Lackawanna Railroad Company:
On behalf of Retarder Techn:wan L. H. Tegler for pay for all time lost, and other benefits, between duly 2$, 1969, and March 16, 1970, account being improperly held out of service. (General Chairman's File: 354. Carrier's Nile: 172-SIC)
EMPLOYES' STATEMENT OF FACTS: this dispute is based on our contention Carrier improperly held Claimant L. H. Tegler out of service between duly 28, 1969, and March IG, 5970, when it failed and/or refused to p·arxnut him to return to service promptly after illness absence even though he was examined by two doctors ·.vho gave him a release for normal duty. He was prevented from returning to service at that time by the Carrier's Chief Surgeon who made that decision without examining him.
There is an agreement in effect between the parties to this dispute be=ing an effective date of March 1. 1953 which, as amended, is by reference made a part of the record herein.
Mr. Tegler was the incumbent of a Retarder technician position at Bison Yard, East Buffalo, New York. On June 1, 1969, he was admitted to a hospital with a back problem, put in traction, treated, then released June 16, 1969. During this absence, he was considered on leave of absence under the second sentence of Rule 47 which is quoted here for ready reference:
Rule 47. Upon request, employer may be given leave of absence by proper authority for six (Gj months or less and will retain their seniority rights. Employer absent from duty on account of sickness or disability will be considered on leave of absence until they are able to return to duty. Employer failing to return before their leave of absence expires will lose their seniority, unless proper extension has been obtained. An employe absent on leave who engages in outside .employment will lose his seniority. Notice of leaves of absence will be furnished local chairmen:
was waived in lieu of a personal examination of claimant by the Chief Surgeon.
J::xlaibit "C~,)" - Letter dated January 6, 1973 from Chief Surgeon to General Chairman cvu:fixvmiy· phy sisal examination on December 4, 1969 at which time claimant `adT-ise3 he had also been hospitalized for coronary a'rte3-y disease, therefore, further reports were required.
Exhibit "R," --- Lctt·:3j. dated February 27, 1970 from General 1VTan,ager-Labor Relations to General Chairinan denying claim.
Exhibit "S" - Letter dated Ap:i1 16, 1970 from General Manager-Labor Relations to General Chairman confirming conference denial of March 18, 1970.
Exhibit "T" - L:tter dated 14Tay 11, 19 7 0 from General Chairman to General Manager-Tabor Relations.
Exhibit "U" - Letter dated -Jane °6, 1970 from General -Manager-Labor Relations to General Chairman.
As shown in Carrier's Exhibit "Q," claimant was examined by the Chief Suxg,aozx on December 4, 1969. Also, at Carrier's request, claimant svas examined on December 4, 1969 by Orthopedic Surgeon Dx. K. S. Alfred and Cardiologist Dr. G. f. Veil. Upon receipt of reports from the foregoing Doctors and an examination of records furnished concerning claimant's coronary artery diseas~a history, claimant xas qualified for service on February 16, 1970.
OPINION OF BOARD. Claim is based on contention that Carrier held Claimant out of service between .July 28: 1969 and March 16, 1.970 when it refused to allow him to return to service promptly following an illness. Claimant alloges that two Doctors had given him a release to retsina to duty, but he was prevented from returning by Carrier's Chief Surgeon who made the decision, though he did not personally examine him until December 4, 1969, approximately six months after his illness.
Carrier contends that the claim should be dismissed as the Organization failed to follow the applicable "Understanding on Physical Re-examinations," but, in any event, Carrier had the sole right to determine the physical qualifications of its employes and such determination should not be overturned by this Board.
We do not agree with Carrier's contention that the Organization fail-ad to follow the "Understanding on Physical Re-examinations." The General Chairman's letter of November 12, 1°69, to Carrier Chief Surgeon 14Iishler requesting Claimant to be examined by a neutral doctor, as well as the General Chairman's letter to Mishler on October 1$, 1969, together with the written authorization by Claimant to release all information that Jar. Mishler had relative to Claimant's physical condition, amounted to substantial compliance, in our opinion, with the requu'e.rnents of the "Understanding on Physical R,8examinations."
However, since Carrier's Chief Surgeon did not "summarily refuse to follow this procedure," the claim is distinguishable from Award 16926, and that case is riot dispositive of 'the claim heroin. Thus, we must determine whether the Chief Surgeon acted in an arbitrary or capricious manner in refusing to allow Claimant to return to service earlier.
It is uncontroverted that on August 6, 1969, the Chief Surgeon qualified Claimant for sedentary work, Furthermore, on October 21, 1969, Dr. Baker, Claimant's personal physician advised the Chief Surgeon that Claimant's lifting should be limited to 35 quo 40 pounds. However, there were no light duty positions available to Claimant, nor was Carrier required to establish such a position. Thus, it was the medical judgment of the Chief Surgeon as well as Claimant's personal physician that dictated the decision to hold Claimant out of service until he had fully recovered from his condition. If Dr. Baker's medical opinion had ber..zn.di''frcxxt, the result herein might also be different, but since that is not so, we are compelled to 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 azld 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 heroin; and
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION