Form I NATIONAL
RAILROAD ADJUSTMENT
BOARD Award No. 28780
THIRD DIVISION Docket No. MW-28625
91-3-88-3-469
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(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
B&B employe H. D. Henderson from service beginning on September 23, 1987
(System File MW-88-13-CB/467-6-A).
(2) As a consequence of the violation referred to within Part (1)
hereof, the Claimant shall be allowed all wage loss suffered beginning on
September 23, 1987 and continuing until he was returned to service."
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.af.appearance at hearing thereon.
The Claimant "blacked out" while painting and fell eight feet from a
ladder on August 18, 1987, and thereafter had no memory of the event. Within
the next few weeks Claimant again experienced another episode. On September
17, 1987, Claimant was medically evaluated and the physical examination was
unclear as to the cause, but suggested cardiac disease. On that same date
Claimant underwent a twenty-four hour Holrer Scan. Based upon the physician's
recommendation, the Carrier withheld Claimant from service on September 23,
1987.
The facts in evidence indicate that on October 7, 1987, Claimant
underwent a Cardiovascular Stress Evaluation at a regional medical center with
no negative findings. On November 3, 1987, Claimant was subjected to an
Electroencephalogram with a normal outcome. By letter dated November 13,
1987, the Carrier was advised that there was "no clear explanation for why
[Claimant] passed out at work." The physician indicated that Claimant was
able to work. Claimant was returned to work on November 19, 1987.
Form 1 Award No. 28780
Page 2 Docket No. MW-28625
91-3-88-3-469
The Organization argues that the Carrier was "extremely slow" in
returning Claimant to his position as Bridgeman. The Organization filed the
instant Claim on November 13, 1987, requesting pay for all lost time from
September 23, 1987, until returned to service. The Carrier denies that its
Chief Medical Officer failed to expeditiously schedule examinations or that
its actions were unreasonable.
As ,a preliminary point, this Board was unable to read Employee's
Exhibit A-4 and Carrier's Exhibit A, pages 9 and 10. If the parties wish the
Board to consider material, it is essential that the exhibits be legible
(Third Division Award 25420). Those exhibits were not utilized in this decision.
As to the usable record, we conclude that the Carrier did not act
expeditiously. The Board does not fault the Carrier for its concern about the
physical capability of the Claimant to safely perform his duties. However, we
find nothing in this record to indicate evidence on the Carrier's part that it
attempted to move the process along. The Organization argues that the Carrier
"did not expeditiously schedule the Claimant's examinations." There is no
Carrier rebuttal or an explanation for the delay.
Our review finds chat in these particular circumstances, the Carrier
acted inappropriately. As to the remedy, we find that one month should have
provided sufficient time for a complete evaluation. The Claimant is to be
paid for all time lost from October 23, 1987, until he was returned to service
on November 19, 1987.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
I
Attest:
ancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 30th dat,of April 1991.