Form 1 NATIONAL RAILROAD ADJUSTMET111T BOARD Award. No. 8099
 SECOND DIVISION Docket ITO. 7889
 2-SLSW-Cld-' 79



Parties to Dispute: ( (Carmen)
 (
 ( St. Louis Southwestern Railway Company

 Dispute: Claim of Embloyes:











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.

Temporary Carman Levell Singleton was employed by the Carrier as a Carman Apprentice on February 28, 1972, axed subsequently promoted to Temporary Carman. By letter dated October 15, 1976, the Carrier directed Claimant to undergo a physical re-exazzination on October 18, 1976, by Dr. H. L. Wineland and informed the Claimant that he was being held from service pending auproval oz" the doctor. The Claana nt was examined by Dr. Wineland on October 18. Dr. Wineland, by letter dated October 20, 1976, wrote Dr. J. R. 0 ~ndy, the Carrier's Chief i,iedical officer, that as a result of his examination he found the Clainant to be controllable on medication but was reluctant to pei:nit him to be e7:ployewble by the Carrier because of instability of judqnent and possible failure of medication. Dr. Wineland strovly recomended that the Claimant not be employed because of danger to h:1xns°lf and others. Dr. Wineland stated further, "Rehabilitation for a safe, sedentary work-,-;ob is my suggestive alternative".
 Form 1 Award No. 8099
 Page 2 Docket No. 7889
 2-SLSW-CM-' 79

 The Organization, by letter dated October 19, 1976, wrote to the Carrier stating that it had been informed that the Claimant vras being withheld from service and had been instructed to report to a doctor designated by the Carrier on October 18, 1976. The Organization stated further in its letter that it had been requested by the Claimant to represent him and stated that he must first be given the opportunity to choose his own doctor and furnish the required reports, citing Rule 41-2(b). The letter also stated the Organization took the position that any medical reports furnished as a result of the October 18th physical. examination wcu.ld be in violation of Rule 41 and of no effect.

 By letter dated October 19, the Carrier stated that it would recognize an examination by the Claimant's own doctor. The Claimant chose Robert J. Smith as his doctor and by letter dated October 28, 1976, Dr. Smith stated that his final diagnosis eras that the Claimant was in good health and able to carry out his usual duties on his job. The Carrier was furnished with a copy of Dr. S~-'mith's letter.

 Because the opinions of the Carrier's medical consultant and Dr. Smith were in conflict, a third doctor vras selected by Dr. Smith and the Chief T:Iedical Officer for the Carrier, in this instance, Dr. Wharton of Dr. Gandy's office. Dr. William R. Harper eras the physician who was chosen. By letter dated December 2, 1976, directed to Dr. Wharton, Dr. Harper stated that the Cla~.mant had an idioiaathic seizure disorder which eras well controlled on Dilantin. Dr. Harper stated that such a disorder would not preclude his unployment in a non-hazardous area. Tte stated further that he would not recornend his return to his job as a freight car welder due to the hazard to the Claimant and, perhaps, to his co-worriers. He stated that the Claimant should make an excellent employee in another job. Thereafter, the Claimant was notified that he was disqualified from farther service due to his physical disability.

 The organization objects to any consideration by this Board of the report of Trair=aster PIarley referred to in the Carrier's submission to the Board, on the ground that that report was not part of the handling of the dispute on the probert`r. The Board sustains the Organization's objection. The Claimant's past medical history and the findings of Dr. I1arper, however, make it clear that there was reason to be concerned about the physical condition of the Claimant.

 The Orgamization contends that Rule 41-2(b) was violated because the selection of the third and. neutral physician eras not made by Dr. Wineland who made the original examination on behalf of the Carrier, but by Dr. Wharton of the Chief Medical Officer's office and the Claimant's physician, Dr. Smith. The Board is unable to see how the Claimant was prejudiced thereby and finds that in the absence of any showing of prejudice the Organization's claim is not well founded. Similar considerations apply to the Organization's contention with regard to the fact that the Carrier's doctor made the first examination prior to the time the Claimant had an opportunity to be examined by a doctor of his choice.
 Form l Page 3

Award No. 8099

Docket No. 7889

2-SZSw-Cm-' 79


Rule 41-3(b) provides that "An opinion concurred in by two of the three doctors shall. be conclusive and binding on all parties." The determinations by Dr. Harper and Dr. TJineland, are, therefore, binding on the Claimant. We recognize the obligation of a Carrier to require that employees be physically qualified to perform their jobs. Third Division Award ITO. 7134. And we cannot say that the Carrier's action here was arbitrary or in bad faith. The Board notes, however, that both doctors and in particular Dr. Harper,, the neutral physician, recommended that the Claimant be furnished other employment for which he was qualified. Indeed, Dr. Wineland recormlendea rehabilitation. Dr. Harper found that the idiopathic disorder would not preclude the Claimant's employment in a non-hazardous area and recommended that he be given another job.
The Board is of the view that if there is a job or position available which the Claimant is qualified to fill that the Carrier should offer employment to the Claimant in that position.

 A W A R D

 Claim denied with the proviso, however, that the Carrier shall, if such a position is available, offer to the Claimant a position for which he is qualified to fill.

NATI01`Y,L R:iILJ:0AD ADJUSME71TT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

Dated!at Chicago, Illinois, this 27th day of September, 1979·