NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 20701

THIRD DIVISION Docket Number MW-20723

Francis X. Quinn, Referee

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Norfolk and Western Railway Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

(1) Section Foreman J. D. B111iter was improperly withheld from service from January 12, 1973 through March 28, 1973 (System File MW-WI-73-100).

(2) Section Foreman J. D. Billiter shall now be reimbursed for all wage loss suffered from January 12, 1973 through March 28, 1973.

OPINION OF BOARD: Carrier had the right to have Claimant examined by

its Medical Doctors to determine whether he was

physically qualified to perform the duties of his position (Section

Foreman).

In the instant case, when Carrier held Claimant physically disqualified and held him out of service it assumed the risks attendant to fallibility. The record discloses that Claimant was physically and mentally fit and did not have any "difficulty". Thus, Carrier becomes obligated to make whole Claimant for loss of the fruits of his contractual entitlements. The examina ten days. Therefore, Claimant was wrongfully held out of service from January 29, 1973 through March 28, 1973. He is to be reimbursed for all wage loss suffered from January 29, 1973 through March 28, 1973.

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

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Award Number 20701 Page 2

Docket Number MW-20723

Opinion. That the Agreement was violated to the extent shown in

A W A R D

Findings. Claim sustained to the extent indicated in Opinion and

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 17th day of April 1975.

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