termine by competent medical authority whether an employe meets those standards. A necessary adjunct to this prerogative is the carrier's right to disqualify for hazardous positions any employe who does not meet the prescribed physical standards.

The carrier's physical standards are the product of years of experience in dealing with the many hazards inherent in the railroad industry. They were established by competent medical men who as a result of years of experience in dealing with persons injured in railroad employment have acquired a special knowledge of the occupational hazards peculiar to the industry together with knowledge of the physical handicaps that render a man unsafe for employment in certain hazardous occupations.

The minimum standards of vision adopted by this carrier for persons employed as yard clerks and others working around moving trains and engines are those recommended by the Medical Section of the Association of American Railroads, representing the cumulative knowledge and experience of the chief medical examiners of the nation's railroads. Obviously carrier's minimum standards of vision are neither arbitrary nor capricious. On the contrary they are based upon intelligent appraisal of the hazards of the industry and a special knowledge, gained from experience of the physical handicaps, that may cause a person exposed to these hazards to suffer grievous injury to himself or others.

It has been found hazardous for employes with limited vision, particularly where there is a limitation in peripheral or side vision, to engage in work where they may be struck by moving cars or engines. The yard clerk position to which claimant had been assigned required such duties. Claimant's vision is permanently impaired to the point where he has practically no vision in one eye with a limitation in peripheral or side vision in both eyes. Ile does not meet the minimum physical standards for his position and was therefore properly disqualified.

There cannot be any question as to the exact status of claimant's vision. He was examined twice by Dr. Leich, an ophthalmologist, and once by the chief surgeon, also a qualified medical examiner. In each of the examinations it was found that claimant's vision was substantially the same and it was conclusively shown he did not meet the minimum visual standards.

The principle that the burden of proof to support the claim rest with petitioner is found in many awards of the Board. Here claim for re-employment and compensation for time lost is made in behalf of employe who was disqualified by competent medical authority because of his failure to meet the minimum standards as to vision. The record, however, is absolutely void of any evidence or argument to support the claim representing a demand for many thousands of dollars in back pay.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant, a Yard Clerk, was employed by Carrier in 1954. In 1958 he suffered a marked loss of vision which necessitated surgery for a cystemic adenoma of the brain which was partially removed. During this time he was on leave of absence. After the operation he reapplied for his position which was denied. This claim was not pursued.

In December of 1958 he underwent a second operation. Thereafter in February of 1959 he again applied for reinstatement, at this time submitting

statements of his operating physician and of an optometrist that he was qualified to return to work. After examination by the Carrier he was again denied reinstatement in a letter of April 2, 1959 which stated that Claimant "is still permanently disqualified for further service on account of physical condition". This letter was accompanied by Form CT-2 dated March 27, 1959 from the Carrier's Chief Surgeon, Ray S. Westline, M.D., which stated the same conclusion.

On May 19 the General Chairman wrote to Mr. Upton, Claimant's immediate supervisor, enclosing the statement of a third Doctor, a Phillip Burns, O.D. and in this letter also called the Carrier's attention to Article 63 of the Agreement. In addition, requested the establishment of a three man medical Board to decide this issue.

Subsequent correspondence was carried on with the Superintendent of the Carrier and later with the Chief Personnel Officer. The claim was again denied, stating in this instance "Claimant's physical condition disqualified him for work performed".

On October 24, 1959 the Claimant was again notified by his Supervisor that "you are still permanently disqualified for further service account physical condition".

On November 6, 1959 the General Chairman again requested a three man medical Board and also raised the question of the applicability of Rule 63.

In the meantime the Organization had also been processing a claim CI,12304 in regard to the Claimant concerning his working relief as a Roundhouse Clerk. These claims were processed under Rule 63. The Claimant's right to their work was also denied, again on the grounds of physical impairment.

This Board has examined many awards handed down by this Division and others involving employes whose health has become impaired during their time of service, however, to a certain extent it finds this case unique.

This Board has held many times that a Carrier has a high duty concerning the question of physical ability of their employes, both as to their own safety and as to the safety of other employes and the general public. (See among others Awards 9046, 235, 6665 and 8394.)

This Board has also stated on numerous occasions, however, that the Carrier does not have the exclusive right to make this alternative.

As stated by Referee Messmore in Award 6942:

"This Board does not dispute the Carrier's right to require an employe to submit to physical examination in its own interest or in the interest of its employes. Awards of this Division have held that this does not give the Carrier the exclusive right to make the determination as to the fitness to perform services solely upon the advice of its own physician or physicians. See Awards 4649, 362, 728, 875, 2886, 3212, and 6317."

It is true that this Board has stated that where there is no conflict in the testimony by Claimant's Doctors and Carrier's Doctor there is no need

for an examination (See 6665) and if we were considering solely the question of the right of the Claimant to his Yard Clerk job we could be constrained to accept Carrier's position.

The fact, however, is that the statements of Claimant's Doctors indicate that this man's vision was sufficient to qualify him for some jobs on the premises. This in contrast to the position taken by the Carrier on several occasions that the man was still permanently disqualified (emphasis supplied). This being so how could he ever be qualified unless permanently doesn't mean permanently.

The fact, further, is that the Organization advised the Carrier on numerous occasions about Rule 63. Said rule reading as follows:

"Efforts will be made to furnish employment (suited to their capacity) to employes who have become physically unable to continue in service in their present positions."

This being so the failure of the Carrier to provide for an impartial medical Board deprived him of his right to determine what if any jobs, he was qualified to hold. It is the feeling of this Board that under the terms of the Agreement, Rule 63 puts a positive obligation on the Carrier to make some efforts to furnish employment as effort is defined in Webster's Collegiate Dictionary as "exertion of power, physical or mental". In this case the Carrier exerted no power, not even answering in its correspondence the Organization's contention that Rule 63 was even applicable.

This Board therefore finds that the Carrier violated the Agreement. However, in light of the fact that it does agree that the Carrier was not arbitrary in its refusal to reinstate Claimant to the job of a Yard Clerk it feels the case should be remanded to the property with orders that an impartial medical Board be set up. If the impartial medical Board finds that the Claimant was physically qualified to hold down another position with the Company which under the Agreement he would have been entitled to, then he shall be recompensed at that rate of pay from May 19, 1959 which is the date the Organization first apprised Carrier concerning that it was asserting rights under Rule 63.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 this dispute be remanded to the parties in accordance with Opinion.

AWARD