NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 20845

THIRD DIVISION Docket Number SG-20618

Francis X. Quinn, Referee

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

(The Long Island Rail Road Company

STATEMENT OF CLAIM: Claim of the General Committee of the Brother-
hood of Railroad Signalmen on the Long Island Rail Road Company:

Appeal discipline imposed on Mr. R. A. Melucci as a result of two trials, May 2, 1973, following 1973.

OPINION OF BOARD: The Carrier has the right to determine whether
or not its employees are physically capable of
performing their duties and to remove them from service when they
are not so capable.

In the instant case, The Rule 67 provides for a Board of Doctors to be set up if a dispute arises concerning determination of physical fitness. The Claima of that remedy. Therefore, we will deny the claim.

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 Employee involved in this dispute are respectively Carrier and EmpToyes the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an

That the Agreement was not violated.

Award Number 20845 Page 2

Docket Number SG-20618

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 24th day of October 1975.

Dissent to Award No. 20845, Docket No. SG-20618

The Majority in Award No. 20845 has erred.

The Claimant in the dispute disposed of was injured in the Respondent Carrier's service. He had been under treatment by his personal physicial and his progress was periodically monitored by the Respondent's physician. Upon a finding by its physician that he was able to return to its service, the Carrier ordered the Claimant's immediate return. The urgency with which it pressed for that return made it obvious that its only concern was to attempt to limit its liability under the Federal Employers' Liability Act.

The Claimant advised that he would have to consult his attorney before he returned to work, and when, because of that need, he did not report for work at the moment designated by the Carrier, the Carrier assessed the subject discipline.

The Majority has denied the Petitioner's claim on behalf of Claimant holding that he should have availed himself of a Board of Doctors prcvi~cn for in Agreement Rule 67. That Rule docs indeed provide for a Board of Doctors, but that Board is for the purpose of making medical. determinations. not for giving advice concerning Claimants legal rights, status, etc. Cladmsnt raised no dispute regarding his physical condition and there was thus no question for a medical. Board to decide.

The Majority, apparently unable to deny the only question which was before it, invented one which it could deny and substituted it. Amore contemptible move cannot be imagined.

Award No. 20845 is in error and I dissent.

W. W. Altus, .7r.

Labor Member

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