Brotherhood of Railway, Airline and Steamship Clarks, Freight Handlers, Express and Station Employes PARTIES TO DI3PV!&:

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

1. Carrier violated the agreement between the parties wham on March 10, 1977, Mr. E. W. Spencer was arbitrarily held oat of service.

 2. Carrier shall now p4 bW. Spencer for all time lost, up to -Tannery 3, 1978, when he was restored to his former position.

 OPINION OF HOARD: Claimant was an extra board clerk at carrier's
 Bellevae Terminal. On march 16, 1977, claimant was disqualified train service for not being able to perform heavy work because of a back problem. As the result of an examination 0f claimant by company doctors on Saptember 27, 1976, claimant had been classified as "clerk inside only." Due to the small number of clerks on the extra board and the fact that claimant coulA only acct Malted assignmenta, his medical record was reviewed and he was disqualified.
for medical arbitration under Rule 65 of the agreement. After a consider
 able delay, the arbitration took place and. on lovember 11, 1977, the
 neutral doctor informed carrier's medical, department that claimant was
 fit to go back to worm: at that time. On December 19, 1977, claimant was
 notified by registered mail of the neutral doctor's decision and was
 authorized to return to work. Ha returned to work an January 3, 1978.
 Tmm!diately upon return to work, the organization filed a claim on
 behalf of clerk Spencer requesting pay at pro rata rate for all days
 held out of service !iron March 10, 197T, to JanGBTy 3, 1978. The claim
 was denied at every step and has progressed to this board for resolution. for ice on March 16, l therefore,

 declared unfit after
 claimant, being returned to work, had a legitimate claim for all days off became of
 carrier's actions. He should be paid for those days.


Carrier argues that claimant was not fit for service in March when he was disqualified. It relied on medical reports to support this position. Carrier also argues that claimant and the organization were responsible for delaying the choosing of a neutral doctor and that carrier should not be held responsible for that delay, Claimwt's personal doctor had suffered a heart attack. The claim was not timely filed and should be dismissed by this board.

 Fray a review of the record, the board is not persuaded that this claim should be dismissed on procedural grounds. It will therefore be decided on the merits. A review of the record also reveals that carrier had ample ,justification for examtniin and subsequently declaring claimant unfit far laborious work. He bad been placed on restricted dmty on a prior occasion. Carrier had a legitimate interest in his. ability to cover say job to which he was assigned.

 Once claimant was examined by his doctor and declared fit for duty, a legitimate conflict existed and medical arbitration was called for by the organization. The delAW between the filing for arbitration on March 31, 1977 end its completion an November 11th cannot be solely attributed to either side. Carrier's medical department attempted to contact claimant's doctor. He, however, was incapacitated with a heart attack.

        This board, however, is of the opinion that carrier did not

act with appropriate diligence to inform claimant that he vas
 return to work. From a review of the record, it is the opinioqualified hboard that claimant should h
qualified to return to work an December 21, 1977. Carrier knew on November 11th of the neutral doctor's decision. Claimant, however, only learned that he could return to work on December 21, 19'/7. He did not choose to report until Jannary-2, 19't8. The fact that claimant did not work between December 22, 1977, and January 2, 1978, is not due to a delay by carrier, but is rather the result of claimant's own decision not to do so. Carrier cannot be held responsible for this lost time.

        FI3DIOG8: The Third Division of the Adjustment Hoard, 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 Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 23073 Page 3

                    Docket Number CL-22958


That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and

 That carrier did unreasonably delay in notifying claimant that he was qualified to retnra to pork.

                      A Ti A R D


Claimant shell be paid at the pro rata rate for the time lost for the period from Decd 1, 1977, to and including Decd 21, 1977.

                        NATIONAL RAaaOAD ADJISTMW HOASD

                        B1 Order of Third Division


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