Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11630
 SECOND DIVISION Docket No. 11254
 89-2-86-2-71
 The Second Division consisted of the regular members and in
 addition Referee Eckehard Muessig when award was rendered.
 (Brotherhood Railway Carmen of the United States and Canada
 PARTIES TO DISPUTE:
 (Indiana Harbor Belt Railroad Company

 STATEMENT OF CLAIM:

 1. That the Indiana Harbor Belt Railroad Company violated the current working Agreement, specifically an Understanding Relating to Physical Examinations of Employees subject to the Shop Crafts' Agreement, which was signed January 1, 1943 and Rule No. 22 when they forced Carman Daniel E. Smith to take a physical examination and a drug screening test after a two week absence from work account of illness.

 Mr. Smith passed the physical examination and reported for work and did work his regular hours on July 2 and 3, 1985, was off duty July 4, 1985 for the holiday, and came back July 5, 1985 and worked up until 2:50 p.m. at which time he was removed from service. Mr. Smith was held out of service for a period of eight (8) work days from July 8, 1985 through July 17, 1985.

 2. That the Indiana Harbor Belt Railroad Company be ordered to compensate Carman Daniel E. Smith eight (8) hours' pay at the pro rata rate for each of the following dates, July 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, 1985 account of their arbitrary and capricious actions, their abuse of managerial discretion, and the violations of the Agreement.

 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 employes 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 significant events leading to this claim arose on July 1, 1985 when the Claimant, who had been absent for two weeks, took a Carrier ordered physical examination. The Claimant then reported for duty and worked on July 2 and 3, was off on July 4, and worked until approximately 2:00 P.M. on July 5, 1985. At that time, the Carrier notified him that results of laboratory
 Form 1 Award No. 11630
 Page 2 Docket No. 11254
 89-2-86-2-71

 tests administered on July 1, 1985 showed that he had tested positive for amphetamines and he was removed from service. On July 12, 1985, the Claimant notified the Carrier that he had had a test administered which showed negative. The Carrier, however, requested that the Claimant take another examination at the clinic that it had earlier used for these purposes. The Claimant, however, refused a test at the time; however, he did take it on July 17, 1985 as previously scheduled by the Carrier. This latest test proved negative and he was released for duty on July 17, 1985 by the Carrier's physician.

 At the outset, the Board observes that a number of matters have been raised in the submissions which were not brought to the surface on the property. Accordingly, these will not be considered in our deliberations.

 Turning to the record developed on the property, the issue is whether the Carrier complied with Rule 22 which reads:










Physical Examinations of Employees

subject to .the

Shop Crafts' Agreement


                          PREAMBLE


          The parties hereto have agreed that there are circumstances under which any employee should be willing to submit himself to a re-examination of his physical condition to the end that it may be ascertained if he is able to perform his duties with safety to himself and his fellow-employees. The carrier affirms an interest in the physical well-being of its employees, realizing that employees in good physical condition will generally work mote safely and efficiently. The employees agree to this premise but desire to protect themselves against possible abuse of the physical re-examination privilege. The carrier agrees also that

Form 1 Award No. 11630
 Page 3 Docket No. 11254
 89-2-86-2-71
 so-called fishing expeditions and abuse of the
 privilege are improper and will not be permitted.
 The physical re-examination privilege should be
 utilized only for the purpose of ascertaining the
 true physical condition of the employee and its
 effect, if any, upon his ability to perform the
 duties required of him with safety to himself and
 his fellow workmen and to promote on the part of
 the employee a desire to protect and improve his
 physical condition.
 ARTICLES OF AGREEMENT

          Article 1. After entering service no employee will be required to submit himself for physical re-examination (excluding vision and hearing re-examinations, which are not affected hereby), except as hereinafter provided.


          Article 2. When the representative of the employees or the foreman or other supervisor has reason to believe that an employee's physical condition at any time while in service is such that he is becoming unsafe and liable to cause injury to himself or fellow employees, he may be directed to take a complete physical examination.


          In cases arising under this agreement, the employee involved may first be examined by a doctor of his own choice at his own expense and shall promptly thereafter present to the carrier and his local committee a written report from the doctor showing in detail the findings as to the employee's physical condition. If the report of such doctor is satisfactory to the carrier, the employee shall be permitted to continue at work, but if the carrier is not satisfied with such report then the employee shall be required to take an examination by the carrier's doctor who shall also prepare a written report showing in detail the findings as to the employee's physical condition and a copy of this report shall be given to the employee or his representative. Thereafter, if necessary, the procedure outlined in Article 4 hereof will be observed.


          Article 3. An employee who presents himself for duty following a severe illness, injury, furlough or leave of

Form 1 Award No. 11630
 Page 4 Docket No. 11254
 89-2-86-2-71
 absence may be required to pass a physical examina
 tion before resuming duty under the procedure out
 lined in Article 2 hereof.
 Article 4.
 In cases where the employee is examined first by
 his own doctor and later by the carrier's doctor
 and the reports of the doctors do not agree as to
 the employee's condition, arrangements may be made
 for his examination by a third and disinterested
 doctor. If possible, the selection of the third
 doctor shall be made by the two doctors, but in the
 event of failure to agree upon a third doctor, the
 selection shall be made by the employee or his re
 presentative and the designated representative of
 the carrier.
 An opinion concurred in by two of the three doctors
 shall be conclusive and binding on all parties.
 The fee of the third doctor shall be fixed by the
 two doctors and borne equally by the employee and
 the carrier. Any attending expenses shall be sim
 ilarly divided.
 Article 5.
 Whenever it is necessary under Article 4 hereof to
 select a 'third and disinterested doctor he shall be
 given a copy of the report made by the carrier's
 doctor and the employee's doctor which reports
 shall include the actual findings of such doctors,
 in detail, as to the employee's physical condition.
 Article 6.
 Where an employee has been disqualified for active
 service hereunder he shall be granted a leave of
 absence by the carrier and thereafter may, within
 reasonable intervals, request re-examinations when
 he has reason to believe he has recovered suffi
 ciently to resume work.
 Article 7.
 This agreement shall become effective on January 1,
 1943, and continue in effect subject to the thirty
 day notice of desire of either party to revise or
 terminate it.
 NOTE: Any car cleaner, who has not been required
 to take a physical examination upon entrance into
 the service, will be subject to such a physical

 examination, if and when he is promoted out of the _

 ranks of car cleaners."
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 Page 5 Docket No. 11254
 89-2-86-2-71

 Clearly, it is not arguable that the Carrier has the right to require physical examinations, subject to whatever process has been established. In this case, the aforementioned requirements have been legitimately established. Whether or not a drug screen may be a part of such a physical examination is not before this Board.

 Turning then to the published process, we agree with the Carrier that Rule 22 was not violated since it does not address the matter of a return-towork physical examination. However, we conclude that the Carrier did not comply with its "Understanding Relating to Physical Examinations of Employees" (the "Understanding"), mainly for the reasons that follow.

 The Understanding places certain constraints on the Carrier because Article I states: "After entering service no employee will be required to submit himself for physical re-examination ... except as hereinafter provided." Article 3 then states that following a "severe illness," injury, etc., the employee may be required to pass a physical examination before resuming duty. In the case at hand, no substantive evidence was presented on the property by the Carrier that the conditions of Article 3 were present with respect to the Claimant. As a matter of fact, he was allowed to resume duty on July 17, 1985. Therefore, on its face, the Carrier itself did not consider the provision applicable because it allowed him to return to duty before taking a physical examination.

 For the above reasons, we sustain the claim. Our ruling here is based on the evidence developed on the property in this particular case. Provided that it has valid indication that an employee's condition poses a likelihood of impaired job performance that could seriously affect him, fellow employees or the public, this Award does not restrict the Carrier's requirement of a physical examination. Its action, however, must be consistent with the Understanding and the appropriate collective bargaining Agreement.

                        A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest:
        ancy J. a -.Executive Secretary


Dated at Chicago, Illinois, this 18th day of January 1989.
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