Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26845
THIRD DIVISION Docket No. MW-27340
88-3-86-3-556
The Third Division consisted of the regular members and in
addition Referee Ronald L. Miller when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
Machine Operator Helper R. 0. Marquez shall be returned to his position as machine operator help
service beginning February 4, 1985 (System File MW-85-84/432-93-A)." -
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 employees 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.
The Organization contends that the Claimant was released for active
duty by his personal physician and that the Carrier has arbitrarily withheld
the Claimant from service. The Carrier contends that the Claimant's doctor
has not released him for return to full service.
In response to a request from the Carrier's Chief Medical Officer,
the Claimant's physician wrote on May 23, 1985:
"According to the job description provided with
that same letter, I do not think that Mr. Ruben
Marquez will be able to maintain sustained work in
heavy manual track labor."
Clearly, the Claimant's physician has not released him to return to full duty,
even though the Claimant may have reason to think otherwise. The Carrier's
Medical Officer is in agreement with the written position taken by Claimant's
physician, and has determined that the Claimant does not have the fitness and
ability for the purpose of his job assignment. Under these circumstances, it
cannot be concluded that the Company has arbitrarily withheld the Claimant
from service.
Form 1 Award No. 26845
Page 2 Docket No. MW-27340
88-3-86-3-556
If the Claimant believes that he is fit and able to fully perform
his job assignment, a written statement to that effect from Claimant's doctor
should be submitted to the Carrier.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. e - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.