The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe with the meaning of the Railway Labor Act as approved June 21, 1934.
Parties to said dispute waived right of appearance at hearing thereon.
This case involves a situation in which the Claimant had entered Carrier's service in its Maintenance of Way Department in September 1974. while on furlough from his Maintenance of Way position, Claimant sought and acquired a position in carrier's Sianal Department effective Februarv 6. 1989. Claimant nerformed service in the Signal Department from February 6, 1989, until March 8, 1990, when he advised his Supervisor that he was having difficulty performing his duties because climbing poles and working while standing on pole spikes for extended lengths of time irritated his knees, which had been previously injured in 1977.
On the basis of this information from Claimant, the Carrier's Medical Examiner examined and disqualified Claimant from performing service in the Signal Department. Claimant was informed of this action either on March 8 or March 10, 1990, depending on which version of the recounting is correct. Claimant subsequently observed a 5-day vacation period from March 12 through March 16, 1990. Effective March 19, 1990, Claimant accepted a recall from furlough to the Maintenance of Way Department and thereby forfeited his seniority in the Signal Department.
Thereafter, by letter dated April 9, 1990, the claim which is the subject of this dispute was initiated and progressed by the Organization through the normal on-property grievance procedures.
The Organization contended that Carrier, by its actions, violated the provisions of Rule 47-Discipline and Rule 50-Claims and Grievances. It contended throughout the on-property handling and in its ex parte Submission to the Board that "disqualification is the equivalent of discipline with a hearing and a violation of Rule 47.11 The organization further argued in its ex parte Submission that Claimant's report to his Supervisor relative to his problem with his knees "was simply shop talk and was not that he could not climb or do his work." There was no evidence or argument advanced by the Organization relative to any alleged violation of Rule 50-Claims and Grievances.
.ate oa.ymau.u~am a acmvimy cam 1RarC:n 17, 1990, wwhen he accepted recall to the Maintenance of Way Department, which date preceded the date of filing of*this claim by the Organization. The Carrier further argued that disqualification by the Medical Examiner is not an act of discipline and no Hearing was required prior to removing f'laimanh frnm ccrm_ir r~ ....:., W .. ^.a a...:- ~.u_ _...._....,.. ^ ar^yL:owaua.iuy' uae un-pr'upcrty
On the basis of the relative convincing force of testimony and evidence in this case, the Board concludes that Claimant was properly removed from his Signal Department position by the Medical Department and such removal from service was not an act of discipline. However. Carrier is wrnna if it believes that 'Ithe physical condition on which the Carrier's Chief Medical officer based his disqualification as a Signalman are and must remain confidential." That determination by the Chief Medical officer is the linchpin of Carrier's action in this case. It cannot be withheld from either the employee or his re_oresentative organization. (It should be noted that the Claimant and the organization were only interested in knowing why Claimant was disqualified. The Carrier misinterpreted such request as a request for Claimant's medical records. It is well established that a patient's medical records are confidential and may not be released to a third party without the patient's consent.) Fortunately in this case, the medical disqualification is an accepted fact which is attested to in the Organization's ex parte Submission to the Board, which Submission included a letter from the Claimant dated April 2, 1990, in which he outlined his visit to the Medical Officer on March 13, 1990, and the Medical Officer's advice to him at that time. But for that, carrier would have been in dire straits by withholding such infor-motion from the representative Organization.
Carrier's argument relative to the standing of the Organization to initiate and progress this claim is neither well founded nor convincing. This claim had its genesis at a time when Claimant had a legitimate standing in the Signalmen's craft. While his subsequent act of accepting a recall to the Maintenance of Way Department may well have impacted on the extent of his Signalman's claim, the claim itself was properly initiated and progressed by the organization. Carrier's argument to the contrary is rejected.
Because Claimant was properly removed from his Signalman's position on the basis of his own complaint and upon the determination and advice of the Chief Medical officer, there was, in this case, no violation of Rule 47-Discipline, nor any other Form 1 Award No. 29734
Rule of the Signalmen's Agreement. The claim as outlined supra is, therefore, denied.