The Second Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered.


                    ' ( System Federation No. 16, Railway Employes'

                    ( Department, A. F. of L. - C. I. 0.

        Parties to Dispute: ( (Carmen)


                        (

                        ( Norfolk and Western Railway Company


        Dispute: Claim of Employes:


                1. That the Carrier unjustly deprived Carman L. C. Sereci from relishing the rights and privileges afforded him under the Current Working Agreement when they arbitrarily disqualified him from all services of the Carrier on August 22, 1972, without due consideration.


                2. That the Carrier be ordered to compensate Carman L. C. Sereci from all wages lost from August 22, 1972 to April 19, 1973, make him whole for all seniority rights, all health and welfare insurance benefits, vacation rights, pension benefits including Railroad Retirement and Unemployment Insurance, and all other


a
                benefits he would have received had he not been held out of

      ~, service.


        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.

            Parties to said dispute waived right of appearance at hearing

- thereon. -

        This case presents the claim of Carman L. Sereci that he was unjustly disqualified from all service-on medical grounds on August 22, 1972. The

-- record-shows that Claimant was returned to service on-April 19, 1973 and
        voluntarily retired on October 12, 1973. Accordingly, the period for

        which wages and compensatory damages are demanded is from August 22, 1972

        to April 19, 1973.

    Form 1 Award hTo. 6880

    .· Page 2

    Docket No. 6690

    2-N&W-CM-'75


      Carman Sereci was employed at Carrier's Calumet Shop at Chicago, Illinois. Sometime in September 1971 he informed his supervisor that he was having-chest pains and trouble breathing. Thereafter, on October 9, 1971 Carrier's Regional Medical Director disqualified Sereci from all service. In this disqualification the Medical Director cited reports from two other doctors, T. Ahearn and George F. Kruse; but neither of these reports appears in the record herein. Nor is there any record evidence that the Regional Medical Director himself examined Claimant at that time, or caused him to be examined.


      In April, 1972 Claimant initiated efforts to return to his employment; with Carrier and presented several doctor's statements, primarily from his personal physician Dr. John A. Caserta, that he was physically and mentally qualified to return to work. On May 15, 1972 Carrier caused Claimant to be examined by Dr. T. F. Ahearn, a Company Doctor. A copy of Dr. Ahearn's report is in the record. herein and contains no contraindications to Claimant's employment as a carman. Nonetheless, on August 22, 1972

      Carrier's Master Mechanic sent to Claimant the following letter: -


              "Mr. L. C. Sereci

              10210 S. Yates

              Chicago, Illinois 60617


              Dear Sir:


              This is in regard to your efforts to return to active duty. as a Carman for the Norfolk & Western Railway at Calumet, Chicago, Illinois.


          As a result of examinations and correspondence from your personal physician and our Norfolk & Western _ - local doctor,. Medical Department decided for the

- benefit. of all concerned that you be disqualified for
 _ all services. 'f_ - -.

      Subsequently, on September 27, 1972 the Organization herein filed a claim that Sereci was unjustly disqualified and also. a request that a thix:d and neutral doctor be selected by mutual agreement of both parties to resolve the question of Sereci's qualification to work. Further, the

_ _ Organization suggested that Claimant be compensated for all lost wages,
 returned to service and "made whole" for listed benefits, if the neutral
 . _ doctor found him qualified for service. Carrier answered this letter on
      November 21, 1972 agreeing to accept a neutral doctor's determination of

      claimant's physical condition; but insisting on withdrawal of the monetary

      claim beforehand, and denying the validity of the claim on the grounds of

      no rule support. The record shows that Carrier and the Organization

      engaged in further substantially identical correspondence exchanges

Form 1 Award No. 6880
 Page 3 Docket No. 6690
 2-N&W-CM-'75

 until February 20, 1973 when the Organization provided Carrier with the name of Claimant's personal physician.

 Thereafter, Carrier's Regional Medical Director, Dr. Hopwood and Claimant's physician, Dr. Caserta selected Dr. Charles L. Range as the neutral physician whose decision would be controlling. On April 3, 1973 Claimant was examined by Dr. Range who issued a report to Carrier's Dr. Hopwood, concluding with the following statement:

        . "It has been so long since he last worked that only a trial of labor at his former position would allow me.to determine his ability to do so without symptoms. The patient indicated to me that he feels he is physically able to work at his former job and at present I find nothing that definitely refutes his statement. The medical situation at present does not permit me to make any more definite recommendation at this time."


On April 17, 1973, Dr. Hopwood notified Carrier's Master Mechanic that Mr. Sereci was qualified for work and, on April 19, 1973, Sereci was returned to service. On May 26, 1973 the instant claim that Sereci had been unjustly disqualified from all service on August 22, 1972 and seeking damages from that date to April 19, 1973, was initiated.. The claim was denied on July 25, 1973 by Carrier's Chief Official designated to handle such disputes, as follows:

        "It is the duty and responsibility of the Company to determine that the physical and mental conditions of its employees are such that they are able to perform their assigned duties in a manner that they will not be a hazard to themselves, their fellow workers and the general public. Dr. Hopwood is a capable physician whose diagnosis in this case was not refuted, but confirmed by the neutral doctor where decision was

        based upon a trial by test. _


        Your claim is not supported by the rules of the current agreement and is respectfully declined."


We have reviewed carefully the facts of record herein and the many awards cited by the parties. We are guided in our deliberation by several important principles therein. It is not denied that Carrier has the right, indeed, the obligation to ascertain that-employees are physically qualified to perform their work without hazard to themselves or others. Awards 5641, 5974, et al. Impliedly, this includes the right to direct its employees to submit to physical examination if it has reasonable cause to believe that this is necessary to determine whether an employee is
 Form 1 Award No. 6880
 Page Docket No. 6690
 2-N&W-CM-'75

 physically fit to perform the duties of his position. Award 13126 (Third Division). If Carrier's finding of a physical disqualification gives r.lse to a dispute then the burden of proving the physical disqualification by substantial material evidence of probative value is upon Carrier. Award 5847, 6561. It is too firmly established to require citation that when petitioned to resolve a dispute, this Board's consideration is confined to the material evidence in the record, without supplementation by either conjecture or hindsight.

 The record herein simply does not support Carrier's assertion that, as of August 22, 1972, Claimant should be totally disqualified for service:. Carrier has provided not one scintilla of evidence to support its asserted reasons for that disqualification to wit: "... examinations and correspondence from your personal doctor and our Norfolk and Western local doctor...'t. Rather, such record evidence as is available shows that as of August 22, 1972 such examinations and correspondence supported Claimant's request that he be returned to service. If Carrier had in its possession other evidence bearing on this point it failed to provide same on this record at its peril. Finally, the neutral examination, while less than overwhelming in support of Claimant's position, was on balance an affirmation of his ability to return to work. The foregoing facts viewed in light of Carrier's burden of showing that its August 22, 1972 decision, at the time it was made, was justified, compel a conclusion that Carrier has failed on this record to carry that burden. Accordingly, we shall sustain the claim.

 It is noted that Claimant seeks, in addition to reimbursement of wage loss, to be made whole for other benefits he might have received but for the disqualification. Upon review of this portion of the claim we find that several of the benefits sought have been obviated by Claimant's October 1973 retirement. Moreover, we are ruled on this point by Rule 28(c) of the controlling Agreement which reads in pertinent part: "... reinstatement will be made and payment allowed for the assigned working hours actually lost, less any earnings in or out of service". Reinstatement is not at issue in this case but Claimant was wrongfully held out of service from August 22, 1972 to April 19, 1973. -Accordingly, Carrier shall pay Claimant for the assigned working hours actually lost between August 22, 1972 and April 19, 1973, less any outside earnings.

                      A W A R D


    Claim sustained as indicated in the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest: Executive Secretary
        National Railroad Adjustment Board


By ...~.-~'t/`L·''_'i...~
 s arze rasc -Adminls ra ive Assistant

      Dated at Chicago, Illinois, this 20th day of June, 1975.