NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22731
George S. Roukis, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(St. Louis-San Francisco Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8706)
that:
1. Carrier acted in an arbitrary, capricious and unjust manner
and violated the agreement between the parties when on September.30, 1977,
it.suspended telegrapher/clerk Patricia Scheirmann from service of the
Carrier. In view of the foregoing arbitrary, capricious and unjust action
of the Carrier it shall now be required to:
(a) ,Restore telegrapher Scheirmann to service of the Carrier with all
seniority, vacation and other rights unimpaired.
(b) Pay employee Scheirmann for all time lost commencing with September 30,
1977, and continuing until employee Scheirmann is restored to service.
(c) Pay employee Scheirmann any amount she incurred for medical or
surgical expense for herself or dependents to the extent that such
payment would have been paid by Travelers Insurance Company under
Grbup Policy GA-23000 and in the event of the death of claimant
Scheirmann, pay her estate the amount of life insurance provided
under said policy. In addition, reimburse her for premium payments
she may have made in the purchase of substitute health, welfare and
life insurance.
(d) Pay telegrapher Scheirmann interest at the rate of 10% compounded
annually on the anniversary of this claim for amounts due under
Item (b) above.
OPINION OF BOARD; In our review of this dispute, we do not find that
Carrier violated the Agreement when it removed Claimant
from service pending a dispositive assessment of her physical condition.
Her statements to the Trainmaster on September 26 and 28, 1978
respectively were indeed serious and potentially posed detrimental consequences if left unclarified.
explicit apprehensions that someone would get killed if she were required
to perform telegrapher duties. '-
Award Number 22854 Page 2
Docket Number CL-22731
Similarly, when we examine the precise chronology of events
during the September 29 through November 7, 1978 period, we do not find
that Carrier prolonged her return to service. It was certainly permissible
for Carrier to request further elaboration of her physician's October 3,
1978 letter to insure that she was physically fit for duty and we will
not interpose a lay medical judgment in lieu of this determination.
From October 6, 1978 through October 19, 1978, the burden of
timely compliance vested exclusively with Claimant's physician, who was
then responsible for preparing a more detailed report of her physical
status and thus we cannot attribute any attendant delay to Carrier.
The Employer, as a publicly regulated Carrier, was entitled to a
comprehensive analysis of her condition. When the October 19, 1978
medical report was sent from Euless, Texas to the Medical Consultant in
Clayton, Missouri, it was followed up with several consultative discussions
between this official and Claimant's physician. There was no determination
made during the October 19-31, 1978 period that she was assuredly fit for
service, nor any indication that Carrier prolonged this phase of the
medical evaluation. The Medical Consultant directed the Company physician,
who was located at Fort Worth, Texas, to conduct a return to work
physical examination, as a concomitant and reasonable precaution on
October 31, 1978, which was promptly observed that same day. An additional
week ensued before Carrier definitively determined that she was physically
capable of returning to work. There was no unreasonable hiatus during
this time considering the postal distance between Fort Worth, Texas and
Clayton, Missouri and the imperative need to review carefully this report
and the October 19, 1978 medical report as clarified by the subsequent
consultative discussions.
If Carrier had waited an additional week or more beyond November 7,
1978 before returning her to service, our prior holding in Third Division
Award 22037 would have been applicable to this dispute. Unlike that Award
where Carrier waited too long before notifying the Claimant that she was
fit to return to service, the Claimant in this instance wasn't fully
approved by Carrier's Medical Consultant to return to work until November 7,
1978. This was not an unreasonable notification given the cimumstaaces of
this dispute. We do not find that Carrier prolonged Claimant's return to
service or acted in a capricious and restrictive manner that was contrary to
its right to determine the physical fitness of its employes. We will deny
the claim.
Award Number 22854 Page 3
Docket Number CL-22731
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 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; and
That the Agreement was not violated.
A W A
R D
Claim denied
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third
Division
ATTEST:
Executive Secretary
Dated at Chicago,
Illinois,
this 16th day of May I980.