THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The Claimant, Mr. Frank Rosa, was regularly assigned to the position of Trackman on the section headquartered at Conneaut, Ohio, under the supervision of Section Foreman Tony Julio.
From July 29, 1957, to November 25, 1957, the Claimant was required by the Carrier to undergo six separate physical examinations at Conneaut and/or Cleveland, Ohio, and in each instance was found to be fully qualified to perform the duties of a trackman.
On or about January 9, 1957, the Claimant was again instructed by Foreman Julio to report to the office of the Carrier's Medical Director, Dr. J. W. Houk at Cleveland, Ohio, for a seventh physical examination.
In a letter dated January 20, 1958, Foreman Julio advised Claimant Rosa in part that:
OPINION OF BOARD: The record discloses that the Carrier required the Claimant to undergo seven physical examinations within a period of six months. The Claimant was held qualified to work after each of the first six examinations but on the seventh he was found disqualified. The action of the Carrier here would seem to be arbitrary and capricious because if they felt the Claimant was physically and/or mentally disqualified it should not have conducted its medical examinations in such a piecemeal manner. The record,, however, does not disclose what, if any, damages the Claimant sustained. A denial Award as to damages is therefore necessary.
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 Employes involved in this dispute are respectively Carrier and Employes 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 the Agreement was partially violated. Claim 1 and 3 are deniedClaim 2 sustained.
We dissent to the majority action in sustaining part 2 of the claim for the following reasons:
First: The majority expresses the opinion that "The Claimant was held' qualified to work after each of the first six examinations but on the seventh he was disqualified." The record shows the Claimant was disqualified on the first examination and the claim had its genesis as the result of such disqualification. On all subsequent examinations prior to that resulting in final disqualification Claimant was only provisionally qualified for service. Second: The majority states: "The action of the Carrier here would seem to be arbitrary and capricious because if they felt the Claimant was physically and/or mentally disqualified it should not have conducted its medical examinations in such a piece meal manner:" The majority thereby indulges in speculation and uncertainty as evidenced by the use of the words "would seem." Third: The examinations were arranged for by the Carrier's Medical Director, eminently qualified in the medical profession, and here we have the majority substituting its judgment for that of the Carrier's Medical Staff contrary to prior awards in which this Board has consistently recognized it is not competent to do-