The employes believe that Rule 46 should be construed in the light of its history. In February, 1923, when the present rule was adopted there was no discussion concerning Rule 46. The carrier was well aware of the fact that the employes were unalterably opposed to physical examination and acquiesced in our thought that the rule as written did not contemplate physical examination. The standard form of application blank referred to in the rule carried no provisions for physical examination, other than the question:

With reference to the above question, the employes vigorously contend that it is irrelevant and in defense of this position we wish to direct the particular attention of the Honorable Board to the incontrovertible fact that this is the identical application blank that was in effect prior to and during the life of the National Agreement when physical examinations were prohibited. Incidently, it has been the standard form until the origin of the present controversy. We are submitting the above referred to application blank marked, and hereinafter referred to as Exhibit 1, the new standard form of application blank marked, and hereinafter referred to as Exhibit 2, and Medical Examiner's Report Physical Examination (for employes returning to service after furlough), marked Exhibit 3, as part of the record in the case.

Some time after the notice of December 16, 1936, the carrier substituted the new form Exhibit 2 and arbitrarily extended its requirements to the shop craft group, and also forced recalled furloughed employes to submit to a physical examination before permitting them to resume work. (See Medical Examiner's Report of Physical Examination, Exhibit 3.)

This case has been handled in accordance with the provisions of Rule 35, and, briefly summarizing, the employes contend as follows:

POSITION OF CARRIER: As outlined in the Joint Statement of Facts, we did not require physical examination of any of our employes except trainmen and enginemen prior to December, 1936, although our right to do so is fully covered in paragraph 3 of the regular application required of all employes, quoted in full in the Joint Statement of Facts. The significance of the first statement of that paragraph, "Applicants for employment must pass a satisfactory physical examination before entering service," is readily apparent.

Rule 46 of the shop crafts' agreement, the only one dealing with applications, providing that "employes when entering the service shall be required

to furnish necessary information called for by the company's standard form of application blank," does not in any manner restrict our right to forego or impose physical examinations at our discretion. Although it is claimed by the organization that when the rule was agreed upon it was understood by both parties that physical examinations would not be imposed, our representatives, parties to the last contract negotiations have no knowledge of any such agreement, although it was probably stated at the time of the negotiations that we had no more idea of imposing physical examinations at that time than we had previously. As a matter of fact, the current agreement had been in effect for over fourteen years when the company decided to impose physical examinations. In this connection, it is only pertinent to add that the requirement is not being protested by any other group of employes or their organizations on the property.

Inquiry of the St. Louis-East St. Louis lines indicates that it is general practice to require physical examination of applicants for shop craft positions and quite a number require examination of furloughed employes after specified lengths of time. Incidentally, our requirements for furloughed employes are applicable only after they have been out of service in excess of one year, and they are not subjected to the same examination as new employes. The main purpose is for historical record, and such employes are not disqualified because of defects previously acquired in the service of the company and in all cases proper allowances are made for deficiencies in record as to vision and hearing due to advanced age from the date of first or initial examination.

Our decision to require physical examination of all classes of employes was due to the passage of Occupational Diseases Acts and similar legislation. Aside from our inherent right to prescribe terms under which applicants may enter the service, we feel it our duty to properly protect the company's interests by seeing that prospective applicants are devoid of physical defects and free from disease. As to the latter, we are likewise protecting the interests of the vast majority of the employes.

First, that it is a managerial prerogative to set up the requirements of employment.

Second, that the rule in our agreement covering applicants for shop craft positions does not restrict our rights in the premises.

Third, that the company and the employes are entitled to protection from contagious diseases. Under the Occupational Diseases Acts we are required to protect the employes in service, and should certainly be permitted to protect ourselves against the employment of men already affected.

FINDINGS: The Second 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 Lab6r Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

In the absence of a rule in the agreement in force the employer has the right to require physical examination in this case at the time of initial employment.

AWARD