NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee William E. Helander when award was rendered.
SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L. (MACHINISTS)
DISPUTE: CLAIM OF EMPLOYES: That the practice of instructing employes to take physical examinations be discontinued and that Frank Morris, machinist, Hornell roundhouse, be compensated for time lost when he was ordered to visit chief surgeon at Cleveland, Ohio, to undergo a physical examination.
EMPLOYES' STATEMENT OF FACTS: On October 13, 1939 Frank Morris, a machinist in the roundhouse at Hornell, N. Y., was sent to Cleveland, Ohio for a physical examination by the company physician of the Erie Railroad Company.
POSITION OF EMPLOYES: That Award No. 368, Docket No. 350, of the National Railroad Adjustment Board, Second Division, was violated by the Erie Railroad Company when Frank Morris, machinist, was forced to go to Cleveland for a physical examination.
That Award No. 368, above referred to, is applicable to this case and reads as follows:
That the Erie Railroad Company violated this award when they compelled Frank Morris to submit to a physical examination; that Frank Morris is entitled to such compensation as he may have lost due to this compulsory physical examination, under Rule 22 (c) which reads as follows:
Therefore, the following Exhibits A-B-C-D-E are submitted to show that every effort has been made to settle this dispute on the Erie property and that it has been properly handled and progressed with the Erie manage-
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 Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The question here is over the claimed right of the carrier to require physical examinations after employment.
There is no provision in this agreement providing for re-examination of these employes. Moreover, there is nothing in the record or in the history of the controversy between the employes and the carrier on this question that would indicate that the employes were ever willing that such a practice be adopted.
Though it has been held in general that physical examinations may not be required of these employes, there must be some limit to the contention that the carrier cannot require such examinations under any circumstances. It would not be reasonable to contend that there are no circumstances in which it may not be required.
A change in the employe's condition of such a nature as to be obvious and likely to subject not only such employe but fellow employes to much hazard, would give the carrier the right to investigate to determine if his condition is such as actually to be hazardous. It does not embrace the right to examine for mere inroads of age.
Where a serious accident has occurred, or a serious illness experienced, such as to make it apparent to anyone that the man's condition has so changed as to make it probable that his retention or resumption of work would constitute a serious hazard, it is but reasonable to assume that the carrier has the right to protect itself and fellow employes.
This does not give the right to the carrier to insist on an examination before returning to service of a furloughed employe or an employe on leave of absence without some other reason as stated in this opinion.
Morris was qualified for work by the chief surgeon on December 9, 1938. 551--6 200