AWARD NO. 254

Case No. 313

 

PUBLIC LAW BOARD NO. 912

 

PARTIES) NORFOLK AND WESTERN RAILWAY COMPANY

TO

DISPUTE) UNITED TRANSPORTATION UNION (C&T)

 

STATEMENT OF CLAIM: Claim of St. Louis Yardman John Lynch, Jr.,

who was dismissedj-as a result of investigation held on December 10,

1974 for not going to Company Doctor as instructed and therefore

charged with insubordination.

FINDINGS: This Public Law Board No. 912 finds that the parties

herein -are Carrier and Employee within the meaning of the Railway

Labor Act, as amended, and that this Board has jurisdiction.

In this dispute the claimant was dismissed for insubordination.

By certified mail the claimant was sent a letter by the superin-

tendent which instructed the claimant to report to Dr. Lansche on

November 13, 1974 for an examination. The claimant received the

letter and refused to report for the physical examination. 14hen

he refused to comply with the superintendents instructions, the

claimant was charged with insubordination and dismissed from the

service-of the Carrier.

The claimant appeared at the investigation with his attorneys and

a court reporter, but the Carrier would not permit the investigation

to be held while the attorneys were present. Consequently, the in-

vestigation was delayed until the claimant could make arrangements

to have a proper representative present.

The Organization contends that the Carrier was not entitled to a

physical examination because the claimant had not requested to re-

turn to work. The Organization contends that if a man is physically

fit to perform his duties that this is a question of fact to be

determined by competent medical evidence. The Organization contends

that the company doctor's findings are not controlling.

 

This is, of course, true, but neither are the employees' personal

physicians' findings completely controlling. If the Board was to

hold that the Company was not entitled to a physical examination,

it would be a simple matter for an employee to obtain a doctor's

report that he was unable to work, and the Carrier would be com-

pletely helpless.

When an employee has not worked for some period of time, the Carrier

is certainly entitled to a physical examination. Many awards on the

First Division, as well as Public Law Boards, have so held.

 

 

 

Award No. 254

Page 2

 

The Organization admits that the Carrier can request a physical

examination of an employee which is reasonable and not arbitrary.

Certainly the request for a physical examination under the circum-

stances herein is reasonable. The claimant had not worked in over

thirty days and was contending he was injured. The Carrier was

entitled to determine for itself if, in fact, the claimant was

injured.

 

The claimant was guilty of insubordination. The claimant acted

on the advise of his attorneys. Under the circumstances there is

no justification for overruling the decision of the Carrier. In-

subordination is a serious offense, and under these circumstances

the Board finds no cause to overrule the Carrier's decision.

AWARD: Claim denied.

 

0%

 

Preston Moore, Chairman

Organization Memb er

 

 

 

Car@-ridr Member

 

 

:'ot. Louis, Missouri

larch 22, 1976