Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28505
THIRD DIVISION Docket No. MW-29014
90-3-89-3-419
The Third Division consisted of the regular members and in
addition
Referee Barry
E. Simon when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it withheld Section
Laborer R. C. Esquibel from service upon his return from furlough status on
March 14, 1988 (System File D-88-O1/MW-12-8).
(2) The Claimant shall be paid all wage loss suffered starting
March 14, 1988 and continuing until the violation ceases."
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.
When Claimant returned from furlough in February 1988, he was required
to take a physical examination in accordance with a Carrier policy requiring
exams of certain
employes who
were on furlough for more than six (6) months. As
a result of this examination, it was determined that Claimant did not meet the
Carrier's medical standard for visual acuity of "20/30 in one eye and not less
than 20/50 in the other, with or without glasses." Claimant's vision in his
left eye, according to his own optometrist, could not be corrected to better
than 20/60. His opthalmologist reported that Claimant exhibits best corrected
acuity of 20/100+ in the left eye, as well as a thirty percent loss of visual
field in that eye. Accordingly, Claimant was advised by letter dated March 25,
1988, that he was not physically qualified to return to work.
The Organization has argued that the Carrier's medical standard is
unreasonable and that it has not been applied fairly in Claimant's case. It
notes that Claimant had surgery for a detached retina in 1978 and had worked
continuously thereafter until furloughed in 1987. The Organization asserts that
the Carrier must show that Claimant's vision has changed so dramatically as to
render him incapable of performing his duties safely and efficiently before the
Carrier can apply its medical standard in light of Claimant's ability to work
subsequent to his surgery.
Form 1 Award
No. 28505
Page
2
Docket
No. MW-29014
90-3-88-3-419
The Organization asserts that the Carrier has not been uniform in its
application of the medical standard. The Organization has referred to other
employes who were permitted to work despite having restricted vision. It also
notes that the Carrier's Safety Rule
876
reads:
"Employees having eye sight in but one eye
must wear prescribed eye protection at all
times while on duty."
The Carrier avers that it has a valid interest in enforcing its medical standard with respect to
must work in and around moving equipment both on or off track, the Carrier
contends that he must have adequate vision to protect himself against the movement of equipment. The
This Board has consistently held that the Carrier has the prerogative
of setting reasonable medical standards and ensuring that its employes qualify
thereunder. This was recognized in Third Division Award
22379,
which involved
the same parties as herein, as well as the same medical standard. In that
case, however, the Board found that the Carrier improperly applied the standard
because the Claimant's opthalmologist had approved his return to work. The
Board also inferred from Safety Rule
876
and other evidence that the Carrier
has in the past utilized employes with impaired vision in one eye successfully.
The Board's award was limited to the facts presented therein. In this case,
however, we cannot draw the same inferences. Safety Rule
876 is
a general
rule, while the vision standard applies to only certain positions. The Carrier
states that there are positions which do not require sight in both eyes. In
those cases, the employee must comply with Rule
876.
When the vision standard
is applicable, however, Rule
876 is
moot.
In the record before the Board in this case, the Carrier has refuted
the Organization's assertion that it has allowed other employees to work with
similar vision limitations. Two of those employees had retired before the
standard went into effect. The Carrier contends that the third employee cited
by the Organization met the vision standards. The fourth employee was the
Claimant in Third Division Award
22379.
Finally, unlike the situation in Award
22379,
there is no evidence
that Claimant's condition does not have an effect upon his ability to work
safely. Claimant's opthalmologist made no such statement. The fact that he
has worked thus far without incident speaks well for Claimant, but it does not
minimize the risk.
Under the circumstances, we cannot find that the Carrier was arbitrary
or unreasonable either in setting the medical standard or applying it in Claimant's case. The Agreem
Form 1 Award No. 28505
Page 3 Docket No. MW-29014
90-3-88-3-419
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. p v - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.