STATEMENT OF CLAIM: Claim of the General Committee of The Transportation-Communication Employees Union on The Pennsylvania Railroad, that:
EMPLOYES' STATEMENT OF FACTS: The Agreement between the parties effective July 1, 1965, as amended and supplemented, is available to your Board and by this reference is made a part hereof.
Mr. R. E. Strickling, hereinafter referred to as claimant, seniority date November 5, 1945, was, prior to January 31, 1966, regularly assigned to the first trick block operator position at "AY" Tower, Arlington, Akron, Ohio. On January 29, 1966, claimant was notified by Carrier that he would not be permitted to perform service as block operator account not meeting the visual requirements of such position, and was removed from his position at "AY" block station effective January 31, 1966.
Claimant was operated on in May of 1964 as a result of a hemorrhage in his left eye. Claimant resumed service at "AY" block station after his release from the hospital. Claimant was given a medical examination by Carrier's medical officer, Dr. W. R. Murphy, on July 23, August 20 and December 11, 1964, June 24, 1965 and January 6, 1966. Claimant worked on his position for approximately eighteen months with the same eye defect. Carrier's medical officer has never indicated that he believed claimant's sight in the left eye would improve from what it was on July 23, 1964. The reports from Carrier's medical officer are attached hereto as TCU Exhibits 1 through 5.
Effective January 29, 1966, the Railroad Retirement Board approved Mr. Strickling's application for an occupational disability annuity which he is receiving at the present time.
Therefore, so far as the Carrier is able to anticipate the basis of this claim, the questions to be decided by your Board are whether the action of the Carrier in removing the Claimant from service account of his inability to meet the standard visual requirement was improper and whether he is entitled to the compensation claimed.
OPINION OF BOARD: R. E. Strickling, regularly assigned Block Operator, was notified by Carrier that effective January 31, 1966, he would not be permitted to continue with his work as Block Operator because he failed to meet the visual requirements of that position. Mr. Strickling suffered eye impairment as a result of a hemorrhage in his left eye for which he was operated on in May 1964. He was given periodic medical examinations by Carrier's physician on various dates between 1964 and 1966. After being permitted to work on his position for eighteen months with the eye defect, Carrier disqualified him as a Block Operator on the basis of a report of its Medical officer on January 6, 1966, which stated that Mr. Strickling's vision had not improved and did not meet the visual requirements of Carrier.
Petitioner contends that the refusal of Carrier to refer the fitness of Claimant to a Board of Doctors for determination is in violation of Regulation 8-E-1 of the effective Agreement. It maintains that this regulation gives neither party the right to refuse or to refer the case to a Board of Doctors. It argues that Mr. Strickling is able to perform the duties of his position as was demonstrated by his performance for eighteen months with his left eye defect and that he should be returned to his position as Block Operator with compensation for the time lost until restored.
Carrier takes the position that the circumstances in the instant case are not of such a nature as to justify submitting Mr. Strickling's physical fitness for the position to a Board of Doctors. It argues that it is within its managerial prerogative to determine the sight standards as well as other physical standards that an employe must have to satisfy his remaining in service. It points out that it gave Mr. Strickling every possible consideration in keeping him in service for eighteen months before disqualifying him for not passing the visual requirements.
Regulations 12 and 14 of the G-45 Manual set forth the visual requirements that an employe must have to remain in service as a Block Operator. The record shows that Mr. Strickling did not meet these requirements of 20-30 vision in one eye and not less than 20-40 in the other, with or without glasses. Mr. Strickling's last medical examination by Carrier's physician on January 6, 1966, indicated that there was no improvement in his left eye and that he was unable to meet the visual requirements of a Block Operator-
The record does not include any evidence which is in conflict with the findings of the Medical Director of Carrier as to the degree of impairment of the left eye. While it is acknowledged that Regulation 8-E-1 provides for the procedure to be followed in the establishment of a Board of Doctors when the General Chairman desires the question of the physical fitness of an employe to be decided upon finally before he is permanently removed from his position, this regulation contemplates a difference of opinion concerning the physical condition of the employe. The disability of Mr. Strickling's left eye was so severe that an examination by a Board of Doctors would only confirm the visual deficiencies already known by both parties. Carrier's willingness to permit Mr. Strickling to work temporarily for eighteen months without meeting the visual requirements of a Block Operator with the possible expectation that his vision might improve does not obligate it to continue to suspend the requirements to qualify him as a Block Operator.
Inasmuch as Carrier was within its prerogatives in determining the physical qualifications for the position and there is no question that Mr. Strickling's left eye deficiency was such as to make him unable to satisfy the vision standards, an examination of Mr. Strickling by a Board of Doctors would not change the requirements of the position or disprove the fact that his left eye was impaired. For these reasons we hold the Agreement was not violated.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;