Docket No. 23125 FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD 39 South La Salle St., Chicago 3, Illinois The First Division Consisted of the regular members and in PARTIES TO DISPUTE: ORDER OF RAILWAY CONDUCTORS LOUISVILLE AND NASHVILLE RAILROAD COMPANY STATEMENT OF CLAIM: Request for reinstatement of Conductor W. W. Fisher, LC&L Division of the Louisville and Nashville Railroad, and pay for time lost account of disqualified and taken out of service on September 30, 1947. FINDINGS: The First Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier or carriers and the employ or employes involved in this dispute are respectively carrier or employe 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. The parties to said dispute waived hearing thereon. This is a claim for reinstatement of conductor Fisher and pay for time lost because of being taken out of service on account of high blood pressure on September 30, 1947. This Division is confronted in this case with conflicting medical evidence. The company physician found the claimant, 67 years of age, to be unfit for service because of high blood pressure, while examination by specialist on more than one occasion over a span of weeks found him to have a much lower blood pressure than that found by the company doctor and declared the claimant fit for service. This Divisions is obviously not expert in medical matters and cannot reconcile this conflicting testimony. In other cases, this Division has returned the docket to the property to have an unbiased medical board review the situation and conduct a new examination. We so direct in the instant case. If the reviewing board finds the claimant fit for duty, the claim is sustained for reinstatement with pay for time lost reduced by outside earnings, if any. Back pay shall begin from such date as the reviewing board finds the claimant was in fact fit for service. If the reviewing board finds claimant has been and continues to be unfit for service, claim is denied. The reviewing board will consist of one doctor appointed by carrier, one by claimant or his representative, and the third doctor to be chosen by the two other doctors indicated. AWARD Claim disposed of in accordance with findings. BY ORDER OF FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: (Sgd.) T. S. McFarland Executive Secretary Dated at Chicago, Illinois, this 14th day of February, 1949. DISSENT TO AWARD NO. 12629, DOCKET NO. 23125 DISSENT OF LABOR MEMBERS The Labor Members of this Division seldom write dissents on Awards, however, the Award in this Case is so far out of line with the evidence in the docket that it becomes necessary to point out (1) the facts of evidence which the Referee apparently ignored and (2) that at the invitation of the Referee the Carrier Members injected the question of deduction of outside earnings. In the first instance the evidence in the submission shows conclusively that the representative of the Claimant informed the Carrier of the fact that a neutral doctor who was a specialist on blood and heart had examined the Claimant 28 days after he was taken out of service, and found his blood pressure normal, no heart ailment and pronounced him fit for his usual work. Regardless of this information the Carrier declined to send the Claimant back to their doctor for another examination as requested by the Claimant's representatives. Later another examination was made by the same doctor as well as by another doctor both reported the Claimant physically fit to perform his usual work and the Carrier continued its declination of employe's request. These are the facts of evidence which the referee completely ignored when he wrote his findings. In the second instance, there was no contention in the docket nor in the Carrier Members' brief to the referee that deductions of outside earnings should be made in the event the Claimant should be reinstated and paid for lost time. The Carrier Members did not mention it in their argument of the case until the referee invited them to include the question. This, in our opinion, is the most unethical action on the part of a referee the Labor Members have ever witnessed or heard of in all the years we have been labor representatives. We also mention the fact that in discussing the Award before it was adopted by the Carrier Members and the referee, the referee boldly stated in substance he was quite sure that the provision in the Award for deduction of outside earnings would not be involved in this case because no doubt the Claimant did not work or earn any compensation during the time he has been out of service, but due to the fact that deductions were argued in other cases and that he did not have the opportunity to express his views as to deductions in those cases he chose to express his view in this case. For the reasons stated above, we, the Labor Members dissent. B. C. Johnson Chicago, Illinois SUSTAINING OPINION-AWARD 12629 Judge Frank M. Swacker, who most competent observers would probably accredit as the outstanding living negotiator in the railway labor field, passed down findings in Award 4674, this Division, April 5, 1940. The circumstances of that case were almost a dead ringer to those of the instant case. Its findings are quoted below with dots indicating omissions in the interest of brevity. That these omissions have done no violence to the sense involved can be seen by reference to the complete printed award by ane one sufficiently interested. ". . . It is charged in the first place that the management (St. Louis Terminal) undertook a campaign in June 1938 to get rid of employes over 65 years of age. Claimant was told that he would have to leave the service January 1, 1939. He attempted to obtain some explanation of the grounds for his alleged physical disability and at first could obtain none. He then went to two physicians both of whom were unable to find anything the matter with him. Again he sought to ascertain the basis of the company doctor's conclusion and was given a report substantially the same as that his own physicians had made, showing nothing radically wrong with him and even concluding that 'your general physical condition is fairly good for your age.' Again it seems a rather remarkable proposition that a man may be examined on June 23rd and the conclusion reached that he would definitely become incapacitated next January 1st. . . . We consider the man is entitled to an examination at the hands of independent physicians to be agreed upon and if they find that he is not physically unfit that he should be reinstated with pay for time lost." (It is to be noted that Judge Swacker at a later date recanted on the matter of payment of time lost with respect to the matter of deducting outside earnings.) Judge Swacker in the findings above quoted stated in some of the sentences omitted that it is the prerogative of management to establish and apply the standards of physical condition that its employes must meet to come on the payroll in the first place and to stay on it in the second place. This referee might have taken this position in the instant case. With reference to the matter of deduction outside earnings, it is only necessary to say that whenever a man is restored to service with pay the question of deduction of outside earnings automatically injects itself into the problem whether the referee mentions it or not. The dissent says that the referee did not take account of the evidence of the heart specialists. Nothing could be farther from the truth. The fact that this evidence conflicts with that of the company doctor is the reason the docket was sent back to an unbiased medical board for review. Referee George Blattner. Docket No. 23126 FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD 39 South LaSalle St., Chicago 3, Illinois. The First Division consisted of the regular members and in addi- PARTIES TO DISPUTE: ORDER OF RAILWAY CONDUCTORS READING COMPANY STATEMENT OF CLAIM: Claim of Conductor Henry I. Binner for reinstatement with seniority unimpaired, and for compensation for wages he would have earned as Conductor from the date he was dismissed from the service until such time as he is reinstated, for alleged violation of Rule "G" at Forest Park, Pa., on August 10, 1947. FINDINGS: The First 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 employe 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. The parties to said dispute waived hearing thereon. This is a claim by Conductor Binner for reinstatement with seniority unimpaired and pay for time lost because dismissed from service August 10, 1947 for alleged violation of Rule G, intoxication. The petitioner admitted at investigation that he had violated Rule G and this testimony appears in the transcript. We are not impressed by the contention that there were deficiencies in the investigation. The employes submit this claimant had never had any previous charges against him in 26 years of service. This is not contradicted anywhere in the record. We have had occasion to point out in other cases that terminating a man's service is a drastic procedure and this is especially true in the case of a man with 26 years service. This man has now lost a year and a half's pay. Intoxication in railroading can never be completely condoned whatever the mitigating circumstances. However, in view of the man's record, we feel that his loss of pay for the period is sufficient penalty. AWARD Claim sustained as to reinstatement and seniority, but denied as to pay of wages while out of service. BY ORDER OF FIRST DIVISION ATTEST: (Sgd.) T. S. McFarland Dated at Chicago, Illinois, this 14th day of February, 1949. Docket No. 18738 FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD 39 South La Salle St., Chicago 3, Illinois The First Division consisted of the regular members and in PARTIES TO DISPUTE: BROTHERHOOD OF LOCOMOTIVE ENGINEERS GRAND TRUNK WESTERN RAILROAD COMPANY STATEMENT OF CLAIM: Claim of Engineer E. F. Miller and Fireman N. O. Hayes for 100 miles at freight rates in addition to any pay already received for service performed on February 18, 1940. This crew was assigned regular to transfer service and on the night in question they reported for duty at 10:20 P. M. and prepared engine 2671 on the roundhouse track, when they left the roundhouse they did not go on their regular tour of duty, but went out to the State Fair Grounds to heat and handle Shrine Circus cars returning to the roundhouse with engine 2671 around 3:20 A. M. and placing same on the designated tie up track. It is our contention that, when this crew placed engine 2671 on the designated track at the roundhouse they were entitled to 100 miles under Par. (a) of Article 12, of our schedule which reads: "In all classes of service covered by Article 2, 100 miles or less, 8 hours or less, shall constitute a day's work." Our contention is based on Paragraph (a) of Article 14, of our schedule which reads as follows: "In all classes of service, engineers time will commence at the time they are required to report for duty and shall continue until the time engine is placed on the designated track or they are relieved at terminal." It is also our contention that when this crew prepared engine 3522 on the roundhouse tracks and went out on their regular tour of duty they started a new day. EMPLOYES' STATEMENT OF FACTS: On Feb. 18th, 1940 this crew, who are regularly assigned in freight transfer service, prepared engine 2671 on the roundhouse track, leaving the roundhouse at 10:30 P. M. They did not go on their regular tour of duty, but went out to the State Fair grounds to heat and handle Shrine Circus cars, returning to the roundhouse with engine 2671_around 3:20 A. M. and placing the engine on the designated tieup track. They then got engine 3522, prepared that engine for service on the roundhouse track and then went out on their regular tour of duty. POSITION OF EMPLOYES: It is the contention of the Committee that when this crew placed engine 2671 on the roundhouse tie-up track, they had completed their tour of duty, as provided for in paragraph (a) of Article 14 of the Engineers' current schedule, which reads as follows: |