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NATIONAL RAILROAD ADJUSTMENT BOARD

Award .;umber 20547

THIRD DIVISION Docket Number CL-20585

Robert A. Franden, Referee

(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (J. F, Nash and R. C. Haldeman, Trustees of the ( Property of Lehigh Valley Railroad Company, Debtor

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7466) that:

(a? The Carrier violated the Rules Agreement, effective May 1, 1955, particularly Rule 68, when Miss Sophie Weiss, Telephone Switchboard Operator, System General Offices Seniority District, Bethlehem, Pa, was removed from service on completion of tour of duty Monday, August 21, 1972, pending results of physical examination following which she was not permitted to return to work, (b) Miss Sophie Weiss be restored to service with seniority and all other rights unimpaired, and be compensated for wage loss sustained during the period out of service, plus interest at 6% per annum, compounded daily, (Case 56/72) OPINION OF BOARD: At the completion of her tour of duty on August 21, 1972, claimant was held out of service pending the results of a physical examination to be given her by the Carrier's Chief Surgeon the following afternoon. On August 29, 1972, claimant was ad vised that based upon the Chief Surgeon's findings she would not be re turned to work. The Organization alleges that the procedure followed by the Carrier was in violation of Rule 68 that the substance of the Chief Surgeon's findings does not warrant removal of claimant from service Rule 68 reads as follows:

"Rule 68 - Physical Examinations

It is recognized that employes coming within the scope of this agreement may be required to undergo physical examination by Company Surgeon upon orders to do so by the Company to determine their physical fitness to safely perform the duties of a position coming under this agreement. Physical examination shall be conducte

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Docket Number CL-20585

"little inconvenience as possible to the emplove and when possible, without loss of time. The Company Surgeon's fee for physical examinations will be paid by the Company. An employe failing to qualify on examination before Company Surgeon may, upon request, time and place without expense to the Company. If upon examination, an employe is found physically unfit by the Chief Surgeon to continue in the service, he may appeal such decision through the General Chairman, supported by medical evidence from a doctor of his own choice. If, after review of his case by the Company he is still determined to be physically unfit to resume work appeal and additional supporting evidence by such employe, Management and General Chairman shall confer as to the further handling of such case."

The Carrier has responded to the effect that there is nothing in the Agreement that prohibits it from holding an employe out of service during the pendency of a phys the findings of disability in this case were in accord with the AAR Medical standards for "operators - telephone switchboard." We cannot agree that the Carrier was fully within its rights in the manner it handled this case. The claimant held her position under a contractual right. The Carrier may not arbitrarily suspend that right as it did f this case. That authority is not implicit under Rule 68. Once an employe holds his position by exercising his rights and seniority under the collective bargaining agreement he is protected from an arbitrary suspension or removal therefro to the employe and, when possible, without loss of time." The actions of the Carrier were not within the letter or spirit of that provision. The claimant, however, has not overcome the burden of showing that the findings of the Carrier's medical authorities to the effect that claimant did not meet the minimum medical standards for her position were arbitrary, capricious or tendered in bad faith. The Carrier has the prerogative of setting reasonabl employes qualify thereunder. We hold that the Carrier violated the Agreement by holding Claimant out of service in the manner outlined above and that Claimant should be compensated for wage loss, if any, sustained during the period from August 21, 1972 to August 29, 1972, without interest.

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Docket Number CL-20585

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 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 violated.

A W A R D

Claim sustained in accordance with this Opinion. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division ATTEST . Executive Secretary Dated at Chicago, Illinois, this 13th day of December 1974.