PUBLIC LAW BOARD #2851 AWARD NO. 3
PARTIES UNITED TRANSPORTATION UNION - T
TO vs.
DISPUTE NORFOLK AND WESTERN RAILWAY COMPANY
STATEMENT Claim for payment of one day, each date, at yard
OF CLAIM: rates, in favor of Bluefield Yard Brakeman J. P.
Gilliam account withheld from service by Assis-
tant Superintendent DeCamp, February 24, 27, 28.
March 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 16, 17,
20, 21, 22t 23, 249 27, 28, 29, 30 and 31, 1977.
OPINION OF THE BOARD
t
On February 23, 1977, Claimant was working as a yard
brakeman on the West Yard Crew at Bluefield, West Virginia. He
was preparing to ride a car that was to be cut off in motion and
allowed to roll free into a track when Claimant fell from the
car step to the ground, a distance of about four (4) feet. After
completing his tour of duty, Claimant was instructed to call the
Assistant Superintendent the next day. The Assistant Superinten-
dent informed Claimant that he (Claimant) was being held out of
service pending a medical examination. Claimant was examined at
Bluefield by Carrier's physician, Dr. Weir, on February 25, 1977.
Dr. Weir found no physical impairment but recommended that Clai-
mant be sent to Lewis-Gale Hospital for additional physical exam-
ination. Claimant was examined at Lewis-Gale Hospital on March
21, 1977, and the Medical Director notified proper authorities
on March 31, 1977, that Claimant was qualified to resume service.
Claimant had been scheduled to go on a paid vacation during the
period he was withheld from service, however, he requested that
his scheduled vacation be changed to the period from April 4, 1077
through April 23, 1977. Upon his return from vacation Claimant
marked up for service and worked April 24, 1977.
The Organization takes the position that inasmuch as
Claimant was examined by Dr. Weir on February 25, 1977, who found
no physical impairment but recommended that Claimant be evaluated
at Lewis-Gale Hospital and that after Claimant was admitted to
Lewis-Gale Hospital and examined, he was allowed to return to d1tN
on April 1, 1977, Claimant should he paid for each date claimed,
which are the dates of his regular assignment work. The Orgari-
zation conceded that Carrier has a right to demand physical stan-
dards of its employees, and if these standards are in doubt, to
order physical examinations. However, if the employee is found
to be fit for service he should he paid for time lost. The Or-
ganization cites Award N". 558 of P.L.B. No. 912 and Award 79 of
SBA 574, as authority for their contention.
PUBLIC LAW BOARD P2851 AWARD NO. 3
Page 2
Carrier contends that Claimant was properly withheld
from service during the period for which time is claimed and
that the claim is without merit; that it would have been irrey-
ponsible of Carrier to have allowed Claimant to continue in scr-
vice after knowing of Claimant's fall from the freight car; and
relies on Award No. 1 of P.L.B. No. 1136 to justify the action
taken by Carrier. Carrier also states that since Claimant was
entitled to vacation during the time he was off, he should not
be allowed pay and that after this incident and on November 5,
1980, Claimant was again examined and was determined to have a
severe seizure disorder. That Claimant is taking extensive medi-
cation to control these seizures and was finally approved to re-
turn to work on April 14, 1981.
The contention of Carrier to the effect that Claimant
could have taken his vacation with pay during claim dates is of
no avail. Claimant has a contractual right to reschedule his
vacation. Also the fact that he was later discovered to have
seizures which required medication and treatment is irrelevant
as far as the instant claim is concerned. Award No. I of P.L.B.
No. 1136 is not in point in this instance. In the said Award
No. 1 of P.L.B. 1136, Claimant was advised to report for physi-
cal examination on May 21, 1972, and was released on May 23, 1972,
and told he would be notified when he could return to work; that
shortly thereafter Claimant began his vacation on June 7, 1972,
while still on vacation Claimant asked Carrier when he could mark
up. About two (2) hours later Carrier notified Claimant he could
mark up at the end of his vacation. In this instance there is no
vacation involved and from the facts in this case, Claimant in
Award No. 1 was on paid vacation, at his choice, most of the tine
between his release date and the time he was allowed to mark up.
It is the opinion of this Board that Carrier had an
absolute right to require a physical examination on February 24,
1977, which was held on February 25, 1977. However, upon the
finding of Dr. Weir that there was no physical impairment, it
was unreasonable to require an additional physical examination
at the Lewis-Gale Hospital, especially after the company physi-
cans at Lewis-Gale Hospital could find no physical impairment
and restored him to work. Therefore, Claimant should be denied
his claim for February 24, 1977, but should be allowed full ccm-
pensation for the remainder of the claim dates. Under authorit,
of Award No. 558 of P.L.B. 912, which cites Award No. 79 of SEA
574, this claim will be sustained except for claim date of
February 24, 1977.
AWARD: Claim for payment of one day, February 24, 1977, denied.
Payment for one day at yard rate for February 27, 28p
PUBLIC LAW BOARD #2851 AWARD NO. 3
Page 3 -
March 1, 2, 3, 6, 7, 8, 91 10, 13, 14, 16t 17? 20, 21t 22, 23,
24, 272 28, 29, 30 and 31, 1977, sustained.
Signed at Roanoke, Virginia, this 9 th day of
September 1981.
GENE T. RITTER,
Chairman
L. E. TREXELL N. G. JeAkins 1290
Carrier Member Organization Knember
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