Claimant Stevenson, who holds seniority as Drawbridge Tender from May 11, 1943, timely placed his application for the aforementioned position .
being held negligent in retaining a clerk in its service who was suffering from epilepsy and who had limited vision, and whose duties required him to traverse hard-surfaced floors, and in permitting packages to lie on the floor where the employe could trip over them due to his limited vision.
In addition, a railroad was held negligent and responsible in damages fin the case of Shepard Admx. v. NYNH&H R. Co., 300 F. 2nd 129, by the United States Court of Appeals, Second Circuit. In that case the company was held negligent due to having rehired an employe knowing of his prior stay at a mental hospital and without having an allegedly fully adequate report on his condition, and knowing of his conduct after reemployment.
Also, in the case of Bayles v. L&N R. Co., 129 So. 2d 679, the court held that Bayles had alleged a cause of action against this railroad when he charged that his injuries were due to his being assigned work which this railroad knew he was physically unable to perform. In that case the court said:
In conclusion carrier reiterates that it was entirely justified in disqualifying claimant Stevenson for position as drawbridge tender at Smalihaus, Kentucky, when it had sound basis for concluding that he was unable to safely perform those duties due to his impaired physical condition. Further, that its action in so doing was not arbitrary or unreasonable, and was not in violation of any provision of the MofW agreement. In fact, had the carrier done otherwise it would have been derelict in meeting its responsibility for the safety of its employes and the traveling public.
Carrier reiterates that the claim is improperly before this Board and should be dismissed, but if for any reason it is considered on its merits there is no basis under the agreement or otherwise for an affirmative award and the claim should be denied in its entirety.
OPINION OF BOARD: This claim arose out of the refusal of the Carrier to assign the Claimant to the position of Drawbridge Tender at Smallhaus, Kentucky.
The record discloses the Claimant, who was the senior applicant for the position was denied that position, because in the judgment of the Carrier's Officers, Claimant was physically unable to perform the duties of Drawbridge Tender at Smallhaus. This judgment was confirmed by the Carrier's District Surgeon who made an examination of the Claimant.
The Carrier is charged with the responsibility of maintaining a safe and efficient operation. In this case we find that the Carrier's officers, having knowledge of Claimant's physical infirmities acted prudently when they re- 13879-27 843
quired the Claimant to submit to the physical examination above referred to, and in refusing, on the basis of the District Surgeon's findings to appoint the Claimant to the position of Drawbridge Tender at Smallhaus, Kentucky.
There being nothing in the record to contravene the judgment of the Carrier's officers, nor the findings of the District Surgeon, and no evidence produced to support the allegation that Carrier acted in an arbitrary, capricious or discriminatory manner, we must deny the claim.
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