(Brotherhood of Railway, Airline sad ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (The Chesapeake and Ohio Railway Company


beginning on November 13, 1975 when they did withhold Mr. Wayne B. Fields from
 service and did then after investigation on November 24, 1975 find him
 medically disqualified for all service, and; a

 (b) Mr. Wayne B. Fields should now be returned to full service with the Carrier, with all rights unimpaired and be compensated for each day he has been withheld from service.

 OPINION OF BOARD: Prior to the occurrence giving rise to the dispute herein,
 claimant was regularly assigned to Operator-Leverman
 position 8:00 A. M. to 4:00 P. M., Sunday through Thursday, at KG Junction,
 Kentucky.

 The record before the Board shows that Carrier had reason to believe that claimant, who was born on June 5, 1908, was not medically qualified to continue to perform service in a satisfactory manner. He was required to undergo several evaluations. He was seen by a psychiatrist on August 13, 1975, and by an internist and a psychologist on October 1, 1975. After consideration of the reports by Carrier's Medical Department, it was deter mined that Claimant was not medically qualified to continue to perform service. He was notified and was held out of service beginning November 13, 1975.

 Although many awards of this Board during the last number of years have held that physical disqualification does not constitute discipline or require handling under the discipline rule, the parties here involved, as a result of an early award by this Division (2144 rendered April 5, 1943), have handled physical disqualification cases under the discipline rule of the Agreement (Rule 27). On November 13, 1975, claimant was notified to attend an investigation in the office of Assistant Superintendent at Covington, Kentucky, charged with not being medically qualified for service.


At the request of a representative of the Organization, the investigation was postponed to November 24, 1975. As result of the investigation, claimant was notified on November 28, 1975, that "you are not medically qualified." In the investigation the claimant stated:

        "I have a note from my doctor 'Mr. Fields is able to return to work at any time' and that is dated November 21, 1975, signed by Doctor A. Martinez."


Although claimant was questioned by the hearing officer as to the type of examination given him by Doctor Martinez, neither the claimant nor his representative actually presented the report from Doctor Martinez, or requested that it be made a part of the record.

 · As a result of claimant's statement at the investigation concerning
 the note from Dr. Martinez, request was made by the Organization for a
 "neutral doctor" examination. The claim was appealed to the Carrier's
 highest designated officer of appeals on that basis. On December 29, 1976,
 Carrier's highest designated officer of.appeals denied the claim to the
 General Chairman, and pointed out that at no time during the hearing was
 any statement presented by claimant from Dr. Martinez "nor has any such
 'note' been presented during the subsequent handling of this matter on the
 property." The Carrier, in its letter of December 29, 1976, did propose
 a procedure to be followed in securing a "neutral doctor" examination of
 claimant if, in fact, a medical dispute existed concerning claimant's
 condition. On February 10, 1977, the Carrier's highest designated officer
 of appeals again wrote the General Chairman:

        "We have investigated this matter and find Mr. Fields was disqualified based on examinations by an Internist, a Psychiatrist and a Psychologist. Other than a statement by Mr. Fields in the Board of Inquiry that: 'I have a note from my doctor - "Mr. Fields is able to return to work at any time," and that is dated November 21, signed by Doctor A. Martinez,' there is no evidence whatsoever in the record to support your contention that a medical dispute of the Carrier's medical findings exists. Barring any medical evidence to the contrary, we must abide by the decision of our Medical Department.


        "If you have a copy of the statement from Dr. A. Martinez referred to above, or from any doctor, will you please furnish copy to this office."

                      Award Number 23008 Page 3

                      Docket Number CL-22982


The Carrier states that in conference on February 22, 1977, the note from Doctor Martinez concerning his examination of claimant was submitted. There is no showing that Doctor Martinez is a psychiatrist or psychologist.

 The record shows that claimant was granted a full annuity by the Railroad Retirement Board effective February 1, 1977. Many awards of this Board have recognized the right of the Carrier to determine the physical fitness of its employes. See Awards 11143, 15367, 18512, 20652, 21340, 21896, and 22553. The Carrier's action in our present dispute was based on reports of a psychiatrist, a psychologist and an internist. Its action was not arbitrary, capricious or in bad faith. The claim will be denied.

 As we have decided the dispute on its merits, it is not necessary to pass upon the procedural and other issues raised by the Carrier.

        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 not violated.


                      A. W A R D


        Claim denied.


                            NATIWAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


        ATTEST; , Executive Secretary


        Dated at Chicago, Illinois, this 17th day of October 1980.