Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29429
THIRD DIVISION Docket No. MW-29868
92-3-91-3-239
The Third Division consisted of the regular members and in
addition Referee Thomas J. DiLauro when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF C:.A=`".: Claim ,of the System Committee of the Brotherhood that:
(1) The .agreement was violated when the Carrier improperly withheld
B&B Carpenter R. - Crawford from service beginning on March 22, 1990 (System
File MW-90-70/49_-v3-A SP).
(2) T,e :.greement was further violated when the Carrier deprived the
Claimant of his rights under the Agreement to vacation, insurance and all
other rights in -Dinection wit-i the violation referred to in Part (1) hereof
(System File MW-?0-140/497-17-~).
(3) As a consequence of the violations referred to in either Part
(1) and/or Part 2) above, the Claimant shall be made whole for all medical
and dental bills that -le .ind ',is family have incurred beginning September 17,
1990 and he sha:: Se compensated for all wage loss siffered, including
straight time and overtime, beginning March 22, 1990 and continuing until he
is allowed to return to duty."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds :hat:
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.
1. Factual Findings
The Carrier employed Claimant as a B68 Carpenter and assigned him to
the San Antonio Division. On August 26, 1986, the Claimant sustained a
on-duty personal injury described as a soft tissue injury to the neck which
resulted in the ~:laimant remaining off work for approximately eight months.
The Claimant returned to work in May 1987, and he continued to work until
December 1987. The Claimant ceased work at that time due to intolerable pain
in his neck and back.
Form 1 Award No. 29429
Page 3 Docket No. aW-29868
92-3-91-3-239
About a month later, the employee requested the railroad to reinstate
him to his former position, but the railroad refused to reinstate the employee
or to examine him to determine his physical condition. The employee brought
an action against the railroad for breach of the collective bargaining contract. The employee demand
for reinstatement, and he also demanded reinstatement.
In reaching a decision in this case, the Circuit Court reasoned:
"A plaintiff .rno ass obtained relief from an adversary by asserting and offering proof to suppo
position may not 5e heard later in the same court to
contradict himself in an effort to establish against
the same adversary a second claim inconsistent with
his eirllec conte,tion."
The Court estopped the Claimant from litigating his claim for reinstatement
because it contradicted his earlier position that he would be unable to return
to work.
The Organization thoroughly researched the law and meticulously prepared this case. .as the corn
on Second Division Award 3837.
I1
that case, the Second Division stated:
"In an order f.)r as equitable estoppel to exist three
requirements must be presented. (1) A material misrepresentation of fact, (2) Reliance thereon by th
representee, (3) A resultant positive detrimental
change of position."
The Organization reviews each element and provides additional Awards in
support of its conclusion with respect to each element.
However, the Board finds the test presented by the Organization
inapplicable to tnis case because of a critical difference in the factual
circumstances. In Award 3837, the employee suffered an on-duty injury which
required him to undergo surgery for spinal fusion. Later, the employee sued
the Carrier alleging the spinal fusion operation had been unsuccessful, and
another operation was required before the Claimant would be able to resume his
employment.
The employee and the Carrier settled the case out of court. In
negotiating the settlement, the Carrier demanded the employee resign or forfeit his seniority rights
acquiesced and settled the case. Fifteen days later, the employee's physician
released him to return to work. The Carrier refused to permit the employee to
resume duty.
Form 1 Award No. 29429
Page 4 Docket No. MW-29868
92-3-91-3-239
The Second Division estopped the Carrier from refusing to fulfill its
obligations under the settlement. The Second Division reasoned
"Having failed to obtain a stipulation to resign at
the time of the F.E.L.A. suit was settled, Carrier
will lot now be heard to complain about the consequences of this failure."
The Board finds Sc;rano to be the appropriate standard in this case
due to its factual and legal similarities with this case. Scarano, cited by
the Carrier, represents offensive estoppel, and Award 3837, cited by the
Organization, represent; defensive estoppel. The invocation of offensive
astoppel, estops the Claimant is the petitioner from instituting a new claim.
The invocation of defensive estoppel, estops the Carrier as the respondent
from defaulting on its previ_cs obligations.
This is a ease of offensive estoppel because the Claimant seeks to
institute a new claim for reinstatement against the Carrier. Therefore,
Scarano provides the correct standard of review.
5. The Invocation of the Doctrine of Estoppel in this case
In another claim tz:olving the same parties as this claim, the Public
Law Board adopted the reasoning of the Third Circuit Court of Appeals in
Scarano. (Public Law Board No. 1795, Case 9.) This Board also considered the
issue of estoppel in prior .awards. The Board explained the purpose of astoppel:
"The
7Asic
phiL)sophy underlying these holdings is
that a person will not be permitted to assume inconsistent or mutually contradictory positions with
respect to the same subject matter in relief from an
adversary by asserting and offering proof to support
one position may not be heard later, in the same or
another forum, to contradict himself in an effort to
establish against the same party a second claim or
right inconsistent with his earlier contention. Such
would be against public policy." (Third Division
Award 6215)
The Board also held:
"When the employee alleges permanent disability resultin., from Injury and pursues that claim to
conclusion and obtains a judgment on that issue, he
has legally esta:)llshed his permanent disability and
the carrier is snder no obligation to return him to
service." (Third Division Award 1672).
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92-3-91-3-239
The facts in the present case are on all fours with the facts of the
Scarano case and similar to the facts presented in the above cited Awards.
Specifically, the Claimant alleged and provided medical opinion evidence of
his permanent, total disability. The jury apparently relied on this testimony
because the verdict included compensation for future wage loss and future pain
and suffering.
The Board considers the recovery of future earnings as a factor to
consider prior to invoking the doctrine of estoppel.
"it seems to this court to contradict the applicable
rule of law is :irmly established that who recovers a
verdict based on future earnings, the claim to which
arises because of permanent injuries, estops himself
thereafter from claiming the right to future reemplo_.-zent, -L.itming that he is now physically abl
return ri work. Third Division Award 23830 citing
Jones :. Central of Georgia Ry. Co., (US DC ND GA,
Augist 13, 1963) .8 LC Par. 18562."
The bare size of the prior ;jdgment and the time lapse between the verdict and
the request for reinstatement are also factors to consider in determining
whether to apply the doctrine of estoppel. (Public Law Board No. 1735, Award
1).
In this case, all three factors support the application of the doctrine of estoppel. First, t;ie
compensate him for future wage loss. Second, the award of $175,000 for Loss
of earnings suggests the jirv intended to compensate the Claimant for his
permanent inability to work during his years of eligibility. Finally, only
four months elapsed between the jury verdict and the Claimant's request for
reinstatement. 7ne jury rendered its verdict in November 1989, and the Claimant requested rein,tatem
Board finds the invocation of the doctrine of estoppel is appropriate in this
case. The Board holds the Claimant is estopped from asserting his claim for
reinstatement based on the jury verdict in his previous case.
The Organization provided other arguments on behalf of the Claimant.
The Organization argued the Carrier's reliance on outdated medical examinations was misplaced
in order to determine his current medical condition. The Organization contended the medical opinions
the Claimant's testimony was based on his understanding of his medical condition at the time >f t
characterization of the testimony given at the trial was incorrect. Because
the decision on the issue of estoppel is outcome determinative, the Board need
not independently address these arguments.
Form 1 Award
No. 29429
Page 6 Docket
No. MW-29868
92-3-91-3-239
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:.
Nancy ,1. r -Executive Secretary
Dated At Chicago, Illinois, =zis 21st day of October
1992.