The Third Division consisted of the regular members and in addition Referee Robert L. Hicks when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
Claimant, as veteran employee of some 27 years was required to undergo physical and neurological examinations to determine his fitness to continue to perform track work. Form 1 Award No. 31218
The Organization challenged Carrier's determination to disqualify Claimant as being discriminatory. Significantly they did not have Claimant secure any reports from the Medical Department nor are they challenging the disqualification of Claimant. Claimant's physical results were, apparently, fine, it just is that Claimant requires the presence of someone to act as "Big Brother" to be constantly aware of where Claimant is at, what he is doing, etc. The Organization believes that the only restriction on Claimant is that he must be constantly supervised.
The Organization contends that Carrier's refusal to permit Claimant to return to work is discriminatory and in violation of Rule 69 of the Agreement, which reads as follows:
This approach obligates the Organization to substantiate these allegations of discrimination by substantial evidence. When the Organization voiced the argument, the Carrier responded saying:
This, the Organization has not done. There is all sorts of reasons why some employees can only function productively if working with supervision, but when challenged by the Carrier to show someone else with the same or even similar condition as Claimant that is currently working, the Organization did not.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 31218. DOCKET MW-31769
(Referee Hicks)
The Majority found that the Agreement was not violated when the Carrier withheld the Claimant from his position because he was allegedly medically unfit to perform his assignment. Specifically, the Claimant was deemed to be medically unfit to perform his assignment without direct supervision e direct supervision since he began his career in 1966. The alleged evaluation was performed without reference to any of the Claimant's previous medical records from which a comparison could be made. It is fundamentally impossible to determine that the Claimant's condition has deteriorated without know During the handling of this dispute on the property, the Organization presented written statements f attesting to the fact that the Claimant had shown no significant change in his abilities.
Inasmuch as the Claimant was deemed qualified when he was hired in 1966 and for twenty-seven (27) years thereafter the carrier had full knowledge of hi not now disqualify him where no showing is made that his condition has changed. It is apparent that there is no medical basis on which to disqualify the Claimant. Although the Carrier has a right to set reasonable medical standards for its employes, it must base Labor Member's Dissent
The Carrier's assertion cited above was challenged by the General Chairman within his September 28, 1992 letter to the Carrier's Assistant Director of Labor Relations. The General Chairman cited at least one instance wherein a sectionman was denied a claim because the claimant in that case was required to: Labor Member's Dissent
Hence, the Carrier was fully aware that at least one other employe required direct supervision as a condition of his employment. The proof was in the record on Majority, much to the detriment of the claimant. Moreover, the General Chairman pointed out that the employe in that case was still working as of the date of his letter of appeal. The Carrier never refuted the General Chairman's assertion that other employes were allowed to " ...work under the direct supervision of a qualified employe..."' Hence, the organization did meet its burden of proof that the Claimant was discriminated against in violation of Rule 59 of the Agreement. In its rush to a judgement, the Majority simply overlooked this fact an than twenty-seven (27) years of unblemished service, was made to suffer the consequences. Therefore, I hereby register my dissent to this award as being palpably erroneous.