DISPUTE: CLAIM OF EMPLOYES: Petitioner believes that this dispute involves five questions upon which an award is desired:
1. Whether or not petitioner's attorneys should have been allowed to be present and to represent petitioner in the hearing ordered by the Second Division of the National Railroad Adjustment Board in Award No. 1711, such cause having been heretofore submitted under No. MC-1405-75?
Without waiving his rights to have his attorneys present in such hearing aforesaid, and only in the event the Board rules that petitioner not be allowed to have his attorneys present, the following further questions are involved:
2. Whether or not the railroad unjustly suspended or dismissed petitioner from their service by failing to assign him any work from April 29, 1949, until the date hereof, thereby violating Rule 17(a) of the agreement between the International-Great Northern Railroad Company and San Antonio, Uvalde, and Gulf Railroad Company, with the System Federation No. 14, Railway Employes Department of A. F. of L., Mechanical Section thereof, effective September 16, 1941, providing as follows:
3. In the alternative, whether or not Rule 27 of the agreement aforesaid providing as follows:
4. In the event that either question 2 or question 3 is answered "yes," whether or not the petitioner is entitled to his wages at the prevailing wage rate from April 29, 1949, to the date hereof, and as a corollary to such question, whether or not he is entitled to a reasonable amount of overtime wages for such period of time?
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 meanixig 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 right of appearance at hearing thereon.
Pursuant to Award No. 1711 of the Second Division of the National Railroad Adjustment Board, a hearing was afforded the claimant on November 20, 1953 at San Antonio, Texas-present at the opening of the hearing were the claimant and his attorney, Mr. W. C. Wolff, Jr., Mr. C. J. Lieck, Jr., the duly authorized local committee, the general chairman, the carrier's representatives and the stenographer clerk who made the stenographic record of the hearing. Immediately the question was raised as to whether the attorneys would be permitted to represent the claimant at the hearing. As it was being held pursuant to Award No. 1711, Second Division, National Railroad Adjustment Board and in compliance with Rules 16 and 17, as well as the Note in connection therewith of the controlling agreement, it was the carrier's position, as well as that of the statutory representatives of the employes that the attorneys representing Mr. Mock could not remain in the hearing, since Rules 16 and 17, and the Note in connection therewith provided for the right of an individual employe to present his own grievance or in a hearing involving a charge against him to present his own case personally and when the individual does so, the duly authorized committee or its accredited representative has the right to be present at all such conferences, .hearings or negotiations between the aggrieved or accused employe and the representative of the carrier; it gives the individual the right to personally handle his own case and makes no provision for any other representative than the duly authorized representative of the employes and the carrier to be present.
The parties to the agreement, the statutory representatives of the employes and the carrier are in agreement as to the intent of rules involvedthat is that the petitioner's attorneys could not remain at the hearing conducted in accordance with the controlling agreement. Since the parties to the agreement have no dispute over the interpretation of Rules 16, 17 and the Note, we see no need for interpretation.
The hearing record shows that the issue to be determined is whether or not a position existed on or after April 29, 1949, the duties of which the claimant is physically able to perform and to which his seniority would entitle him. Claimant admits he is, or at least has been, afflicted with epilepsy, and the doctors have so found. That is normally a question for doctors to 1780-19 719
determine, and carrier's supervisory personnel have a right to rely upon competent medical advice in such matters.
The record of the hearing held on November 20, 1953, does not show that there existed a position the duties of which claimant was physically able to perform and to which he was entitled by the exercise of his seniority rights. Claimant contends otherwise, but was unable to satisfactorily discharge the burden of proof to that effect. This leaves a conflict of evidence based upon the record before us; we are unable to say the carrier erred in reaching that conclusion.
The hearing record shows that carrier made an offer to return the claimant to work if a competent neutral medical examining board shows his physical condition was such that would permit him to work in 1950-this was refused by the claimant-the record discloses this offer is still open. Therefore, we think pay for time lost is without merit and is disallowed.