Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8830
 SECOND DIVISION Docket No. 856+
 2-GTW-CM-181
 The Second Division consisted of the regular members and in
 addition Referee David P. Twomey when award was rendered.
 Brotherhood Railway Carmen of the United States
 Parties to Dispute: ~ and Canada


Dispute: Claim of Employes:




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, 193+.

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

The Claimant in the instant case is Mr. Donald C. Marshall. Prior to December, 1978, Mr. Marshall had six years of service with the Carrier; and held a Cayman's seniority date of June 9, 1978.

 Mr. Marshall was out of work after November 7, 1978, due to a medical problem and was released by his physician to return to work on December 15, 1978. The Carrier's Chief Medical Officer, V. J. Gallant, M.D. directed Mr. Marshall to be examined by the industrial Clinic at Flint, Michigan on December 15, 1978 to determine if he was physically fit to return to work. As a result of this examination at the Industrial Clinic, Dr_ Gallant concluded in part on December 27, 1978 as follows:
Form 1 Award No. 8830
 Page 2 Docket No. 8564
 2-GTW-CM-181
 congenital and developmental condition involving the lower
 lumbar spine which precludes him from doing any type of
 laboring work which involves any heavy lifing, excessive
 bending, squatting, etc. I have been told by Mr. R. F.
 Miller that there is no light work available in the car
 shop and henceforth this man will have to be disqualified

The Carrier states that Car Foreman R. F. Miller personally contacted Mr. Marshall on either January 8 or 9, 1979 and orally advised him that he had been physically disqualified for return to service as a Carman by the Carrier's Chief Medical Officer. The Organization states that Mr. Marshall was informed by phone around the end of January, 1979, concerning his disqualification.

 By letter dated February 6, 1979, the Local Chairman submitted a claim on Mr. Marshall's behalf which claim was denied by Car Foreman Miller. By letter dated February 26, 1979, the General Chairman appealed Mr. Miller's decision and stated in part as follows:

The General Chairman also set forth his opinion that the Carrier was in violation of Rule 31, concerning an employee being disciplined without a fair hearing.

On behalf of the Claimant, Dr. A. F. Turcke, a radiologist, in a report dated February 17, 1979 concluded as follows concerning the Claimant:





George D. Seymour, M.D., the Claimant°s physician, explained the term "spondylolisthesis" as used in the above report, in a handwritten document dated February 22, 1979 as follows:
Form 1 Award No. 8830
 page 3 Docket No. 856+
 2-GTW-CM-181

 Orthopedic Surgeon J~ pa Herzog, D.O, examined Mr. Marshall on April 25, 1979 and he concluded as follows :




















We find that the Claimant did riot comply with the fifteen day time limit set forth above in the first paragraph of Rule 124. The Organization's written request for a Rule 124, paragraphs 1-6 physical re-examination was made in the General Chairman's letter of February 26,~ 1979. While the Carrier's position is that the Claimant was notified on either January 8, or 9, 1979, the organization recognizes that the Claimant was at least informed of his physical disqualificaition "around the end of January". Under the Organization's view of the facts some twenty days had elapsed after the Claimant was informed of his physical disqualification before a request was made for a~ *11~.ule 124, paragraphs 1-6 physical re-examination. We must find therefore that the Claimant no longer had the right to a physical re-examination under: the conditions outlined in paragraph 1-6 of Rule 124 at the time the organization first requested such a re-examirs Lion on February 26, 1979.

 We find that Rule 31, Discipline, is not applicable to the instant case since the record is clear that Mr. Marshall's disqualification was based on his physical condition.


Form 1
 Page 4

 Award No. 8830
 Docket No. 8564
 2-GTW-CM-181

 Mr. Marshall is presently covered under paragraphs 7 and 8 of Rule 124. And, if it "later definitely appears" that "physical condition has improved", he is entitled to a physical examination by a physician designated by the Carrier. A review of the medical evidence made available to the Carrier by the Claimant from his personal physicians Doctors Turcke, Seymour and Herzog did not reveal that the Claimant's back condition for which he was physically disqualified had improved, as required by paragraph 7. We must find therefore that the Claimant was not in conformity with paragraph 7 of Rule 121 during the handling of this case on the property so as to be entitled to a physical examination by a physician designated by the Carrier under paragraph 7 of Rule 124.

 Should it definitely appear now or in the future that Mr. Marshall's physical condition as determined in December of 1978 has improved he then shall be entitled to a physical examination under paragraph 7 of Rule 124. However based on the record before the Board we are compelled to deny Mr. Marshall's claim.

 A W A R D

 Claim denied.

 Attest:

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Executive Secretary
 National Railroad Adjustment Board

 By _ -"e' ~ ...s '

Dated t Chicago, Illinois, this 9th day of December, ig81.