PUBLIC LAW BOARD NO. 2837
Award No. 4
Case No. 4 (a) and (b)
Parties United Transportation Union (C&T)
to and
Dispute The Atchison, Topeka and Santa Fe Railway Company
Statement
of Claim: (a) Yardman DeMoss, April 19 through June 19, 1978 for
one day's pay each date at the appropriate rate.
(b) Request of Yardman DeMoss for physical reexamination.
Findings: The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within the meaning
of the Railway Labor Act, as amended, that this Board is duly constituted
by Agreement dated December 4, 1980, that it has jurisdiction of the
parties and the subject matter, and that the parties were given due
notice of the hearing held.
Claimant, a former yardman, was hired by Carrier on May 26, 1944
and employed as a switchman at its Argentine Yard in Kansas City until
July 3, 1972 at which time he suffered a heart attack. Claimant on
March 5, 1973 was granted a disability annuity by the Railroad Retirement
Board effective July 4, 1972 pursuant to his request because of his
physical condition resulting from said heart attack.
Carrier, on April 14, 1978, received a letter from Claimant dated
April 13, 1978, requesting therein that he be returned to a full-time
status as a switchman. Attached thereto was a statement from his
attending physician, Dr. John Yulich, who recommended his unrestricted
return to service as a railroad switchman.
The record reflects subsequent exchanges of medical correspondence.
That from the employee was to the effect that he was quite capable of
working. That of the railroad to the effect that he was not.
Claimant was advised by Carrier that he was not physically capable
of returning to work as a switchman and that he would be continued as a
disability annuitant. He began submitting time claims alleging that he
had been improperly held out of service.
-2- Award No. 4
The Employees requested a physical examination of Claimant under
Appendix 26 of the Yardman's Agreement. Time claims on his behalf were
also filed, commencing April 19, 1978. Carrier declined on the basis
that Claimant, as a disability annuitant, was governed by Appendix 20.
Appendix 20 of the Yardman's Agreement reads:
"Letter Agreement, General Managers Lautz and
Gillies to General Chairman Gross, September 9, 1940:
Employees who have obtained or may in the future
obtain annuities because of permanent and total
disability will be considered automatically on
Leave of absence and carried on a seniority
roster with the designation 'Disability Annuitant'
until one of the following first occurs:
First, such annuitant loses his annuity upon
finding of the Retirement Board that he is no
longer disabled, and such annuitant signifies
his desire to return to our service and
satisfactorily passes physical examination by
the company's doctors, or
Secondly, such annuitant obtains the age
of 65." (underscoring supplied)
Appendix 26 thereof, in part, reads:
"In the event an employee... is found to be
disqualified as a result of a re-examination
conducted under the company's rules governing
physical examinations..., feels that his
physical condition does not justify removal
from the service or restriction of his rights
to service, such employee, upon request in
writing by himself or his representative within
thirty days following notice of disqualification,
may be given further re-examination as follows:
1. *****
(b) If the two physicians agree, the employee's
physician and the railroad's physician will
select a third physician who shall be a
practitioner of recognized standing in the
medical profession and where any special type
of case involved must be a certified specialist
in the disease or impairment which resulted in
the employee's disqualification. The board of
-3- Award No. 4
physicians thus selected will examine the
employee within a reasonable time, not
exceeding fifteen days after their selection,
setting forth the employee's physical condition
and their conclusion as to whether he meets the
requirements of the company's physical
examination rules.
*****"
Appendix 34, in part pertinent, provides:
"Section 1 (a). Except as otherwise provided...
an in-service employee withheld from service
on instructions of the carrier for the purpose
of undergoing a medical evaluation, shall unless
correctly restricted or disqualified as a result
thereof, be paid for all time lost until
authorized by the Carrier to resume duty.
Section 2. An employee who is off duty for a
period of thirty (30) or more days on account
of a serious medical deficiency which could
lead to his restriction or disqualification
should give Carrier as much advance notice, in
writing, as reasonably possible of a date of
intended return to service..."
Despite the eloquent, vigorous and persuasive arguments offered
by the UTU representatives, they are found to not be persuasive enough
to alter the factual circumstances in which Claimant had placed himself
and which he failed to alter.
The issue raised herein does not concern whether Claimant was
factually physically capable of working as a yardman. Rather the
gravamen of the dispute is whether Claimant, who held a contractual
leave of absence relationship solely as a result of Appendix 20 was
entitled by reason of the provisions of Appendix 26 and Appendix 34
to undergo a physical re-examination by company's doctor.
The Board finds in the negative. Claimant's status was specifically
governed by Appendix 20. Thereunder, until Claimant, as a condition
precedent, had his status as a Disability Annuitant altered because he
was therefor no longer entitled to his disability retirement benefits
then Claimant had no right to nor could he present himself to Carrier
for a physical re-examination.
-4- Award No. 4
Claimant instead of presenting results of his medical examination
to Carrier should have presented same to the Railroad Retirement Board
and then been examined by their doctors. Such doctors are, in the final
analysis, the ones originally who passed upon Claimant's entitlement
to his disability annuity. They are the ones to alter same. That's
precisely what the provisions of Appendix 20 state. Claimant was aware
of such fact.
It is to be noted that Appendix 26 was not applicable because
Claimant was not then an in-service employee who was found to have been
disqualified as a result of a re-examination conducted under the company's
rules. Appendix 34 could not be reasonably held to have been applicable
to Claimant. Claimant was not covered by the provisions of Section 2
because he had already been disqualified. He was not an in-service
employee as that term is used in said Appendix 34.
For the Board to sustain this claim would in effect be amending
existing rules. It is without jurisdiction to do so.
The case was premature for handling by our Board. Inasmuch as
Claimant had not altered his disability annuitant status with the
Railroad Retirement Board such fact was a condition precedent to his
returning to the coverage of the Agreement Rule cited by the Employees.
In the particular circumstances, this claim must be denied.
Award: Claim denied.
T. J. McGuire, Employee Member D. H. Hise, Carrier Member
Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, November 20, 1982.
|