NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25909
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it improperly withheld
Welder Helper G. D. Wallace from service beginning April 13, 1983 (System File
MW-83-25-CB/397-87-A).
(2) The claimant shall be returned to his position as welder helper
and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Claimant, a former Welder Helper for Carrier, suffered a
gunshot wound to the chest and left shoulder in an off-day
incident on March 1, 1983, and was hospitalized at Jefferson Regional Medical
Center Hospital in Pine Bluff, Arkansas. On April 8, 1983, a Doctor James A.
Lindsey released Claimant to return to work. On April 11, 1983, he reported
to the Regional Engineer's office with the release from Dr. Lindsey. He then
filled out a medical history form, indicating that he had had or then had many
serious physical and mental problems. He was subsequently sent to Dr. A. G.
Sullenberger for a return to duty examination. Dr. Sullenberger recommended
that the Carrier obtain further information concerning Claimant being treated
by a psychiatrist before permitting him to return to work. After receiving a
report from a psychiatrist at the Southeast Arkansas Mental Health Center, the
Carrier's Chief Medical Officer found that Claimant was not qualified for
service. Claimant was notified accordingly on September 19, 1983. He then
requested a hearing under the Discipline and Grievance Rule of the applicable
Agreement, to which the Regional Engineer responded in part:
...Your disqualification was for medical reasons
as a result of the reports from the various
physicians from whom you have received treatment.
These reports were reviewed by the Carrier's
Medical Department. Disqualification for medical
reasons are not considered discipline and as a
consequence you are not entitled to a disciplinary
hearing pursuant to Article 14 of the current
agreement."
The Board agrees that medical disqualification is not considered
discipline.
In the handling of the dispute on the property, the Organization
contended:
Award Number 25801 Page 2
Docket Number MW-25909
..since the St. Louis Southwestern Railway Company's
Medical Department has rendered its decision not to
return Mr. Wallace to service as a result of medical
reports by Dr. Ragsdill and Dr. I. L. Carlton as well
as various psychiatric examinations, it is the Carrier's
responsibility to furnish copies of these reports.
"We now request that a copy of all medical reports
as outlined above be furnished for our files."
The Carrier's Labor Relations Officer responded:
...Our files do not contain the information that you
have requested. However, if you would furnish this office
with a written release from Mr. Wallace allowing you to
have copies of the requested medical and psychiatric
reports, I will forward it to our Chief Medical Officer."
No release was furnished by the Claimant.
Based upon the record before us, we do not consider the Carrier's
action in declining to permit Claimant to return to work beginning April 13,
1983, to be arbitrary capricious or in bad faith.
The Board has been furnished a copy of Award No. 193, Special Board
of Adjustment No. 280, involving the contention that Claimant was unjustly
dismissed by Carrier on October 3, 1983. In that Award the dismissal of
Claimant was upheld.
The claim herein, actually involving the period April 13, 1983 to
October 3, 1983, will be denied.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
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.
Award Number 25801 Page 3
Docket Number MW-25909
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy onever - Executive Secretary
Dated at Chicago, Illinois, this 12th day of December 1985.