Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29243
THIRD DIVISION Docket No. MW-29751
92-3-91-3-104
The Third Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
(former AWP-WofA-AJT-Georgia Railroads)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly withheld
Mr. R. P. Silcox from service beginning December 21, 1989 and continuing
[System File 90-20/12(90-328) AWPJ.
(2) As a consequence of the aforesaid violation, Mr. R. P. Silcox
shall be compensated for all wage and fringe benefit loss suffered beginning
December 21, 1989 and continuing until he was returned to service in accordance with his seniority."
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.
The operative facts in this case are reasonably clear and undisputed.
Claimant, while working as a Trackman in the vicinity of Lithonia, Georgia,
was observed by his Foreman in a sitting position while engaged in the act of
placing tie plates. When questioned about this, Claimant indicated that he
had strained his knee and found that he exerted less pressure on the knee from
a sitting position. The Foreman reported this observation to the Roadmaster
who also questioned Claimant relative to the situation and received basically
the same explanation. Thereupon, on December 21, 1989, Claimant was informed
that he was being withheld from service pending a medical evaluation of his
ability to safely perform his duties.
Form 1 Award No. 29243
Page 2 Docket No. MW-29751
92-3-91-3-104
So that a complete picture of this dispute may be examined, it is
necessary that we set forth the chronology of events which occurred subsequent
to December 21, 1989. To begin, Carrier's Chief Medical Examiner instructed
Claimant on December 26, 1989, to present himself for a neurological evaluation by a physician of Ca
letter dated January 8, 1990, the Chief Medical Examiner instructed Claimant
to present himself for an orthopedic examination by a physician of Carrier's
choice on January 31, 1990. Claimant attended both examinations as scheduled.
The report from the January 9, 1990, examination was submitted to Carrier
under date of January 12, 1990. The report from the January 31, 1990, examination was submitted to C
The next step in the chronology occurred on March 2, 1990, when
Carrier's Medical Department released a report to the Engineering Department
indicating that Claimant was qualified to return to duty effective January 31,
1990. Also on March 2, 1990, the Chief Medical Examiner wrote to Claimant
informing him that he was
"...
medically qualified to perform service with the
restriction of 'trackman only.'" Claimant finally returned to service on
March 26, 1990.
In the meantime, the Claim was initiated on February 16, 1990, and
has been progressed through the usual and customary handling on the property.
The Organization argued that Carrier had no right to remove Claimant
from service in the first place on the basis of the
"...
word of a non-professional, Roadmaster Bowen,
....
It continues with the argument by asserting that once the Claimant had been removed from service, th
"...
obligated to move forth expeditiously and arrange for a physical examination
to support its position." It concludes that the delays experienced in this
case did not constitute expeditious handling and, therefore, the claim should
be approved as presented.
Carrier asserts that its right to determine the ability of an employee to properly and safely perfor
scheduling and evaluation of medical reports were timely accomplished, and
that the claim as presented is excessive because Claimant, of his own volition, remained off duty fr
The right and responsibility of the Carrier to determine the physical
and emotional ability of its employees to properly and safely perform their
assigned duties has been often examined by this Board and has repeatedly been
recognized as proper. (Third Division Awards 25634, 24933, 24471.) Contrary
to the assertion as made by the Organization, the Roadmaster is a professional
in his area of expertise. When an employee indicated to the Roadmaster that
he was experiencing physical difficulty in the performance of his duties, the
professional Roadmaster was obligated to make a determination of the situation
by referring the matter to medical professionals. In this case, the initial
action as taken by the Roadmaster was well reasoned and proper.
Form 1 Award No. 29243
Page 3 Docket No. MW-29751
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Having said that, however, we concur with the Organization's contention that once an employee has be
set amount of time or any predetermined number of days in which to schedule
examinations. Neither should there be a pre-determined amount of time in
which to make determinations after medical examinations have been conducted
and reports issued. In the busy medical profession, scheduling can be a
problem over which the Carrier has no control. In a given case, one report
may well open the door to other potential areas of concern which must be
examined. To say that 5 days or 7 days is always sufficient to accomplish an
examination or to make a determination after the examination is simplistic.
Each case must be examined on the individual fact situation which exists.
In this case, the fact situation indicates that Carrier acted expeditiously in the scheduling of the
withheld from service on December 21, 1989. By December 26, 1989, Carrier had
arranged for the first evaluation. By January 8, 1990, it had arranged for
the second evaluation. In our opinion, in this case, these actions were reasonable and expeditious.<
We are concerned, however, with the timeliness of Carrier's decision
to return Claimant to service following the issuance of the evaluation reports
by the medical experts chosen by Carrier. As noted earlier, the report from
the January 9, 1990, evaluation was issued on January 12, 1990. Carrier had
it in hand prior to the January 31, 1990, examination. As for the report from
the January 31, 1990, examination, it was dated that same date - January 31,
1990. Carrier says, however, that the January 31, 1990 report was not received until February 13, 19
record to lend credence to this assertion. The report is dated January 31,
1990. There is no cover or transmittal letter in the record. There is no
"received" date stamp or indication of any kind on the document. There was no
mention of the February 13, 1990 "received" date in any of the on-property
exchanges of correspondence. We find it unusual that thirteen days would be
required to transmit a letter from Athens, Georgia, to Jacksonville, Florida.
We are also concerned with the delay which extended until March 2, 1990, before Claimant was informe
delay to March 2, 1990, was not expeditious.
As for the delay from March 2 until March 26, 1990, when Claimant
actually returned to service, we are at a complete loss to make a determination on this point. There
aspect of the claim to be found in any of the on-property correspondence which
would explain this delay. In the Submissions to this Board, Carrier says it
was Claimant's own volition which caused the delay, but offers nothing more.
The Organization says
"...
after receiving no further correspondence from the
Carrier, Claimant Silcox was reinstated to his former position on March 26,
1990, restricted to perform only trackman duties." This statement proves
nothing and ignores the March 2, 1990, letter from the Division Engineer to
the General Chairman as well as the above-mentioned letter dated March 2,
1990, from the Chief Medical Examiner to Claimant.
Form 1 Award No. 29243
Page 4 Docket No. MW-29751
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From a review of the complete situation which existed in this case,
it is our conclusion that Carrier acted properly and prudently in removing
Claimant from service pending an evaluation by medical personnel; that the
medical evaluations were expeditiously scheduled; but that the Carrier did not
act expeditiously in its determination to return Claimant to service. Therefore, we conclude that Cl
lost from January 31, 1990, to and including March 2, 1990. The remainder of
the claim as presented is denied.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ncy J.
P-
Executive Secr ary
Dated at Chicago, Illinois, this 18th day of May 1992.