NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22543
Richard R. Easher, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(San Diego & Arizona Eastern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-8579) that:
(a) The San Diego and Arizona Eastern Railway Company
violated the current Clerks' Agreement when it removed employe
F. R. Mousseau from service; and
(b) The San Diego and Arizona Eastern Railway Company
shall now be required to return Mr. F. R. Mousseau to service with
all rights unimpaired; and
(c) The San Diego and Arizona Eastern Railway Company
shall now be required to compensate Mr. F. R. Mousseau one day's
compensation at the Guaranteed Extra Board rate, $48.44 per day,
December 3, 6, 7, 8, 9, 10, 13, 14, 15, 17, 20, 21, 22, 23, 24, 25,
27, 28, 29, 30, 31, 1976, January 1, 3, 4, 5, 6, 7, 10, 11, 12, 13,
14, 17, 18, 19, 20, 21, 1977, and continuing each date thereafter
until he is restored to service with all rights unimpaired.
OPINION OF BOARD: Claimant entered the service of the Carrier on
July 16, 1969 as a telegrapher. Claimant, a
Navy veteran, was approximately 55 years of age upon his entry into
the service of the Carrier. At the time the grievance arose, the
Claimant was a guaranteed extra board clerk working at San Diego on
various positions. The Claimant was removed from service on
December 3, 1976 as the result of a medical examination performed
at the Carrier's direction by the Carrier's medical department on
October 28, 1976. The Carrier's physicians determined, on or about
November 24, 1976, after reviewing the results of the medical
examination, that the Claimant should not continue working and
should retire. The basis for the recommendation that the employe
Award Number
2581
Page 2
Docket Number CL-22543
retire was the Carrier's medical report which concluded with the
following diagnosis:
"(1) Diabetes Mellitus
(2) Mild Hypertension
(3) Moderately severe cerebral and generalized
arteriosclerosis with probable mild mental
deficit.
On the basis of my findings, and the letter from
Mr. Harold (Harral) it is understandable that the
patient might be forgetful and in view of these
findings it is recommended that the patient be
put on medical disability."
Subsequent to Claimant's removal from service on December 3,
1976, a request for an investigation pursuant to Rule 50 of the
Agreement was made. Rule 50 provides in part: "An employe who
considers himself unjustly treated, shall have the same right of
investigation . . ."
Additionally, the Claimant sought, after providing the
Carrier with documentation from his own physicians attesting to his
ability to return to work, a determination by a panel of doctors
pursuant to Rule 62(b). This Rule provides in pertinent part:
"If an employe should be disqualified for service or
restricted from performing service to which he is
entitled by seniority on account of his physical
condition, and feels that such disqualification is
not warranted, the following procedure will govern:
A special panel of doctors consisting of one doctor
selected by the Company specializing in the disease,
condition or physical ailment from which the employe
is alleged to be suffering; one doctor to be selected
by the employe or his representative specializing in
the disease, condition or physical ailment from which
the employe is alleged to be suffering; the two
doctors to confer and if they do not agree on the
physical condition of the employe, they shall select
Award Number 22581 Page 3
Docket Number CL-22543
"a third doctor specializing in the disease, condition
or physical ailment from which the employe is
alleged
to be suffering."
The remainder of the rule establishes the panel's process
and decisional authority.
The Organization contends that the Carrier's resistance
to institution of the hearings required by Rules 50 and 62(b), is
and of itself, requires the sustaining of the claim. The Organization further contends that Rules 3
also violated; and that Rules 63 and 66, Rules, respectively,
involving Incapacitated Employes-Changed Duties and Sick Leave
were also violated. The Organization specifically cites the
language in Rule 62 (b) which states that the tripartite medical
board shall be established if the employe feels that the disqualification was not warranted.<
The Carrier takes the position that it was justified in
disqualifying the Claimant in view of the medical examination and
recommendation by its physicians recited above. That is, upon the
finding of the diabetes, mild hypertension and the moderately severe
cerebral and generalized arteriosclerosis with probable mild mental
deficit, the Carrier acted within its rights to remove Claimant from
service and to recommend retirement since Claimant could not
adequately perform assigned duties. The Carrier further contends
that the first time a medical opinion, substantiating the Claimant's
position that he was able to perform his duties adequately, was
furnished to the Carrier occurred on July 25, 1977. That medical
report states, "To Whom It May Concern: Examined this man on 7 Feb. '77
and found no evidence of arteriosclerosis and no pathology that would
prevent his working. In my opinion he is completely employable."
The medical panel's finding on August 29, 1977, which determined that
the evidence of medical fitness furnished by the Claimant on July 25,
1977 was sustainable, did not, the Carrier argues, render unjustifiable
its decision of the previous December that the Claimant should be
disqualified. Further, the Carrier argues, nothing in Rule 62, or
any other provision of the current Agreement, provides for the compensation requested under the cond
The Carrier concludes that it was justified in withholding
Claimant from service until as a result of the findings of the majority
of the panel of doctors Claimant was returned to duty, and therefore,
the Carrier submits that the claim should be denied.
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Docket Number CL-22543
The position of the Organization is sustainable under both
Rules 50 and 62(b) of the Agreement. Requests for hearings and/or
examinations were made under both of the subject rules properly and
timely. The fact that a final determination sustaining the Claimant's
position that he was medically fit for service was not made until
August of 1977, was not due to the fact that the Claimant or the
Organization delayed in the resolution of the question.
The Carrier's position that the employe was in fact medically
disabled during some period prior to the determination by the panel
of doctors must be rejected on two grounds. First, Carrier's position
concerning the Claimant's medical
condition prior
to the panel of
doctors determination is speculative. Secondly, the Carrier cannot
benefit by this speculation since it had within its control the
ability to convene a panel which would have rendered a more speedy
determination of the Claimant's condition.
Finally, numerous awards of this Division of the Adjustment
Board have granted compensation to employes who have been held out of
service as a result of improper medical disqualifications where nearly
identical rules have been found to have been violated.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds-
That the pa=ties waived oral hearing;
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
aver the dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim is sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
aly,
Dated at Chicago, Illinois, this 30th day of October
1979.