NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MSX-19465
William M, Edgett, Referee
PARTIES TO DISPUTE:
(REA Express, Inc.
STATEMENT OF CLAIM: This is to serve notice as required by the rules of the
National Railroad Adjustment Board, of my intention to
file an ex parte submission on July 23rd, 1971 covering an unadjusted dispute
between me and R.E.A. Express, involving the question, should I have suffered
the loss of 31 days with out pay?
I believe R.E.A, owes me 31 days pay.
No cral hearing is necessary.
On the morning of April 16th, 1971, after I had finished my work,
I was told to go and take an I.C.C, physical at the Allport Medical Center.
While I was under going this examination, the doctor found that I had a perforation in the right ear
test, as they did when I took my pre-induction test for the army in 1942.
After I was tested on a machine, which by the way was not in a sound proof
room. After the test I was led into a consultation room, where I was confronted by a doctor Baker, h
driver, he said told me that I would have to purchase two hearing aide, before going back to work. D
hour later, and also said that I should not report for work that night.
On May 25th, 1971 I received a telephone call from the Allport
Medical Center to come in the next day and that they would give me a release
to go back to work. I wish someone would explain the sudden change. I went
back to work for R.E.A. Express on May 31st 1971, but there is no explanation
or reason given for being out of work for 31 days. I would like to quote
rule X155 in the R.E.A. manual of general rules and instructions (Over the
Road Drivers are required to be reexamined every three years, by a licensed
doctor of medicine or osteopathy. I am not an over the road driver, I did
not bid for any bulletined position for over the road work, I did not get any
hearing aids. The perforated eqr drum? I had that when I came to work for
R.E.A. in February of 1960.
,..'` s<~
Award Number 19535 Page 2
Docket Number MSX-19465
OPINION OF BOARD: Claimant is seeking reimbursement for wages he lost when
he was held out of service after Carrier's physician
refused to certify him for duty following a physical examination on April 16,
1971. Claimant went to the Illinois Eye and Ear Infirmary Clinic for a fur
ther hearing examination. On May 26, 1971, Carrier's physician, after a
telephone conference with the Clinic issued a certification, which was ap
parently based on the report given to him by the Clinic. Carrier immediately
restored him to service.
On June 22, 1971 Claimant filed notice with the Board of his intention to file an ex parte submi
Board. In his submissions and in his oral presentation Claimant argued that
he was held out of service in violation of the Agreement between REA and the
Brotherhood of Railway and Steamship Clerks. The record shows that he did
not file a claim, as provided by Rule 11 of that Agreement, but instead filed
a submission directly to this Board.
At the hearing Claimant ably presented his case. He advised the
Board that he had refused, for a period of time, to release the results of
his examination at the Clinic to Allport Medical Center. The Center, after
further examination of Claimant, rescinded its earlier certification, which
was based on the Clinic's examination, and Carrier thereupon removed him
from service again. During that period, he advised the Board, he received
benefits, including Supplemental Unemployment Benefits under Rule 13 of the
Agreement. Finally, he released the report of the Clinic to the Allport
Medical Center. At the hearing Claimant advised the Board that his representative then arrang
He was restored to service following that examination and now claims a period
of 56 days lost wages.
The Board's jurisdiction is derived from the Railway Labor Act
which requires that disputes to be adjudicated by it moat first be handled
on the property. The record here clearly shows that this claim was not
placed before Carrier on the property. In Award No, 18350 (Dorsey) the Board
considered a similar situation and said:
"The record is clear that the claim the Petitioner is
attempting to assert before the Board was not handled on the
property of the Carrier in accordance with the provisions of
the applicable collective bargaining agreement and as required
by Section 3, First (i) of the Railway Labor Act and Circular
No, 1 of the National Railroad Adjustment Board. The claim is,
therefore, barred from consideration by the Division and will
be dismissed,"
This claim must be dismissed for the reasons expressed above.
Award Number 19535 Page 3
Docket Number MS%-19465
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employee 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
That the Claim moat be dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD AIITDSTNENT BOARD
By Order of Third Division
ATTEST:
eX
di y
Executive Secretary '
Dated at Chicago, Illinois, this 20th day of December 197Q.