In summary, the Employes sincerely believe that the Car'rier's officers acted contrary to the provisions and intent of Article b, Rule 40, and that the injustices which have resulted obligate the Carrier to reinstate the employe in accordance with the provisions of Article 5, Rule 40, Paragraph (d).

We respectfully request that our claim be sustained.

It is hereby affirmed that all data herein submitted in support of our position have heretofore been presented to the Carrier and are hereby made a part of the question in dispute. .

(Exhibits not reproduced.)

OPINION OF BOARD: This case comes before the Board and is progressed by and on behalf of Carrier. For the purpose of identification of parties we will refer to Carrier as claimant, and John Long, employe and the Organization as Respondents.

Carrier contends its action in removing John Long from its service as B. & B. Carpenter, effective September 19, 1949, was not improper nor in violation of the Agreement between the parties.

Briefly the facts in the case before us are: John Long has been in the employ of Claimant since November, 1945. He held position of B. & B. carpenter, Portland, Oregon. On May 17, 1949, Long suffered an accidental personal injury while in the employ of Claimant and was off work until August 15, 1949, having returned to work on authorization by Dr. Brown on August 12, 1949, with the proviso he was "still under treatment", as evidenced by Carrier's Exhibit A. He remained in the service of Claimant until he was removed on account of his physical condition on September 17, 1949. During the time he returned to work in August, 1949, to the time of his removal from duty, the record discloses he was given some light work and on one occasion, August 19, 1949. he had been doing shoveling work and was not able to work the next day. Again on August 24, 1949, it is disclosed the Respondent Long left his work and was later found by his foreman to be lying under a tree and he explained "'he had taken a pill and it had made him sick and almost pass out". After removal from service on September 19, 1949, Respondent Long requested a hearing on his alleged dismissal, which was granted at Portland on October 4, 1949. On October 19, the Claimant requested Long to report to the Supervisor's office for order for physical examination, which further stated that if qualified physically he would be returned to service, and again on October 24, 1949, Claimant advised by letter to Long he would be returned to service, after passing physical examination, with seniority, vacation and pass privileges unimpaired. the question of pay for lost time 'to be handled further.

The hearing held on October 4, 1949, was undertaken as provided by Article 5-Rule 40 of the Agreement, and provides for procedure in discipline and grievance matters.

The Respondents, while sometimes contending this to be a discipline case, have stated in writing in the record this is not a discipline case, as set out in letter from the General Chairman to the Claimant and in addition stating he had advised Long after examination he would be returned to service with seniority and vacation rights unimpaired but would not be paid between September 17, 1949, and October 18, 1949, the period during which Long had refused to have physical examination at Claimant's request.

We are unable to find in the record that Long did not receive a fair and impartial hearing, nor was Long denied any rights by refusal of Claimant 'to produce certain witnesses. Their presence was not material.

We are of the opinion and hold, the Employe arbitrarily and against the advice of his representative refused to comply with the request for him to

have a physical examination to determine his ability to perform his work anti by his refusal to submit to such examination his position is not well taken, and he is not entitled to be reinstated to his position, with all its benefits, during the period of such refusal. The Claimant, by the same token, had no right to remove Long as it did, without proper medical examination, and we hold that Long is entitled to all his pay for the period from September 17 to October 19, 1949, with all his rights unimpaired, but subsequent to such date until the employe, Long, submits to physical examination as requested by the Claimant, no pay or other allowances shall be construed as due and owing under this opinion and award.

The Carrier, Claimant, has the inherent right to take precautionary measures, where the safety of the employe is involved, or the public, and we hold the request of the Claimant for physical examination was not an arbitrary or unreasonable request. See Awards 4649, 875.

It is our opinion the Carrier should compensate the Employe for all lost time and all rights unimpaired up to and including October 19, 1949. That after such date the Employe has arbitrarily refused to submit himself for physical examination and is not entitled to compensation or other benefits of his employment during the period of such refusal.

The Board is of the opinion that the Employe, Respondent, be required to submit himself for physical examination within ninety days from the date of this award to the medical examiner authorized by Claimant, and it is so ordered. It is further ordered that if the Employe at the end of such ninety days refuses to submit to such physical examination, the Carrier as Claimant will be relieved of all further responsibility ·to such employe.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That claim be sustained in part and denied in part.

AWARD