Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26843
THIRD DIVISION Docket No. SG-27320
88-3-86-3-431
The Third Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brother-
hood of Railroad Signalmen on the Chicago and Northwestern
Transportation Company (C&NWT):
On behalf of Signal Maintainer R. G. Burtzos that;
(a) On or about May 22, 1985, the Carrier violated the current
Signalmen's Agreement, especially Rule 10 when it unilaterally removed Mr.
R. G. Burtzos, Signal Maintainer at Malta, IL, with headquarters at Rochelle,
IL from service.
(b) The Carrier now reinstate Mr. Burtzos to his position as Signal
Maintainer at Malta immediately, compensate him for all time lost, and for all
time Carrier continues to keep Mr. Burtzos off his assignment. Further that
Carrier also compensate him for all expenses incurred as a result of being
removed from service. General Chairman file: CSNW-G-AV-62. Carrier file:
79-85-11."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Rule 10 states in part:
"Except in an emergency, an employee will not be
removed from service until it is agreed between
the officer in charge of labor relations and the
General Chairman that the employee is unfit to
perform his usual duties."
Form 1 Award No. 26843
Page 2 Docket No. SG-27320
88-3-86-3-431
The record is clear that the Claimant was removed from service on or about
May 22, 1985, by the Carrier without the agreement of
"...
the officer in
charge of labor relations and the General Chairman
....
The Carrier's letter
of August 12, 1985, states several times that the Claimant was removed from
service by Dr. Cook, the Carrier's Medical Director.
The Carrier argues that its action was not unilateral, and that it
acted upon the Claimant's statements of ill health, the findings of the
Claimant's physician and the Carrier's best medical judgment. Notwithstanding
these points, the language of Rule 10 is clear and unambiguous on this point;
the agreement of the General Chairman is initially required. It must be noted
however, if agreement is not reached, Rule 10 provides for the binding decision of a neutral doctor.
of Rule 10. The unilateral removal of the Claimant by the Carrier is-a violation of the Agreement.
A remedy for this violation should take into account that: (a) the
medical examination was ordered by the Carrier in part by the expressed concerns of the Claimant for
stated that the Claimant could not perform his normal work and could do very
little light work, and (c) there is nothing in the record of this case to
indicate that the Claimant is now (or has been since May, 1985) physically
capable of performing his regular assignment. Therefore, the Claimant shall
be returned to service only upon a showing that he is now physically capable
of performing his regular assignment. If the parties cannot reach agreement
as to his present physical condition, they shall be bound by the decision of a
neutral doctor as provided for in Rule 10.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest.,
Nancy J. ewr - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.