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                    THIRD DIVISION Docket Number CL-24400


                          Ids Klaus, Referee


                    Brotherhood of Railway, Airline and Steamship Clerks,

                    Freight Handlers, Express and Station Employee


    PARTIES TO DISPITMElgin, Joliet and Eastern Railway Company


                  STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GZr9577) that:


    (1) Carrier violated the effective Clerks' Agreement risen, on March 9, 1981, it failed to recognize the seniority of Clerk Barbara Dommer is the assignment of Position GT-560;


    (2) Carrier shall now compensate Ms. Dommer for eight (8) hours' pay at the pro rata rata of Pbsition GT-560 for March 9, 1981, and continuing thereafter for each Saturday through Monday up to and including March 18, 1981;


    (3) Carrier shall further compensate Ms. Doer the difference between the pro rata and the time and one-half rate for each and every day that she performs service outside the hoses and/or the work-week of Position GT-560 from March 9 through March 18, 1981. Dates and times to be determined by a point check of Carrier's records.


    OPINION OF BOARD: In March, 1981, the Claimant applied for the advertised

    position of Janitor, for which it was specified that,

    "Applicant must have valid State of Indiana/Illinois driver's license".


    The Claimant was not awarded the position. The awarding bulletin recognized her senior status but designated her "not qualified". The reason subsequently given for the designation was that she was under medical restriction against driving a Company vehicle.


    In August, 1978, the Carrier's Chief Surgeon advised the Claimant that a recent physical examination reflected a right eye visual deficit, and informed her that she would be restricted from operating any Company vehicle until she could produce medical evidence that the condition had been corrected. It clearly appears that, as of the date of her March 1981 application, she had not submitted medical evidence acceptable to the Chief Surgeon.


    The Organization makes two contentions in support of its position that the Claimant was improperly denied the position: (1) the Claimant met the "seniority, fitness and ability" standards of the Agreement and the published requirements on the basis of seniority ranking, ability to perform janitorial work, and the possession of a valid driver's license. (2) The Carrier has failed to demonstrate a justifiable basis for disregarding her otherwise proves right to the position.

                        Award Number 24196 Page 2

                        Docket Number CL-24400


With particular regard to her physical qualifications, the Organization's main argument is that possession of the requisite license is conclusive proof of the Claimant's fitness to drive a Company vehicle. It has also sought to prove by further evidence, that her visual deficiency has not impaired her ability to drive. It pouts out that is the ten years of her Carrier service she has held fobs which required operation of a Company vehicle. It notes particularly that shortly before the denial of this assignment, and since then, she has held this very position as an extra board employe. Moreover, about five months after the denial, she was awarded the position of chauffeur, involving the delivery of mail by Company vehicle sad requiring a special Chauffeur's license, which permits her to drive cars, trucks and passenger-carrying vehicles.

 The organization cites Award No. 23141 as controlling precedent for rejecting the Carrier's disqualification of the Claimant on the basis of her visual deficiency.

 The Carrier urges refection of the claim on two grounds: (1) The claim is barred from consideration because the underlying position of the validity of the medical restriction was not protested within prescribed contractual time limits. (2) The claim is without merit because the Claimant failed to meet the physical fitness requirements for the position, as evidenced by the valid 1978 determination of the chief Surgeon.

 The Carrier has acknowledged that in 1978 and 1979 the Claimant held two positions which required the use of Company vehicles. It stressed, however, that she had three accidents on those assignments, resulting is property damage, which demonstrated that she would be a threat to the safety of fellow employes and the public if she were again allowed to drive.

 On careful review of the entire record, the Board has concluded that the claim is properly before us and that it should be sustained as the merits.

 On the threshold question of the validity of the claim, we find that it is not barred by failure to file a timely complaint against the Chief Surgeon's restriction. The essence of the claim, as we see it,'is its challenge to the denial of this particular assignment, not to the restriction as such. We turn to a consideration of the merits.

 The Claimant's seniority rank and general ability to-perform the required janitorial tasks are not is question. As the Claimant also satisfied the license requirement, the real issue is whether the Carrier has established that there was reasonable justification far disqualifying her on grounds of lack of physical fitness by reason of her visual deficiency.

 Although we do not accept the Organization's view that possession of the license should is itself be deemed sufficient m this record to establish the Claimant's physical qualification, we cannot on this record regard the medical restriction alone as providing reasonable justification for her disqualification. There is persuasive evidence is the award of the Chauffeur position and in the Claimant's continued presence as an extra board employe is this very fob that the Carrier has sot felt itself bound by the restriction. Hence, it cannot now be heard to claim otherwise.
                        Award Number 24196 Page 3

                        Docket Number CL-24400


The Carrier has asserted as a further justification that the Claimant has actually shown herself to be unqualified to drive by reason of three accidents in 1978 and 1979. Although the record suggests that the accidents were not a reason for the disputed disqualification, we have nevertheless given that evidence careful scrutiny because of the clear importance of the safety factor is the operation of a vehicle. We note that the Carrier has offered no specific details as to the nature or circumstances of any of the accidents, and no evidence at all that the Claimant was at fault or that the Carrier believed her to be responsible for them. And perhaps most significantly, there is no assertion or proof of any casual connection between the accidents and the Claimant's visual deficiency. The Board therefore finds insufficient support in the record for the Carrier's statement that the Claimant would be a threat to the safety of fellow employee and the public if she were again allowed to drive.

 In view of the foregoing, and particularly the undisputed evidence of the Claimant's selection for the same and similar fobs, we conclude that the Carrier has failed to establish reasonable justification for disqualification of the Claimant on the basis of her visual deficiency. Contrary to the Carrier's contention the disqualifying condition suggested in Award No.23141 has not been shown to be present here.

 The claim will be sustained insofar as it alleges a violation of the Agreement. The remedy sought, however, is not as acceptable one. The claim for compensation is limited to the period ending on March 7.8, 1981, when the Claimant's entitlement to the Janitor position ceased upon her displacement. The compensation claimed for that period is for eight hours' pay at the rate of the Janitor position for each workday sad for additional pay at time and one half for every day of service the Claimant performed "outside the hours and for the work-week" of the position.

 The Carrier objects that the compensation sought is inappropriate and amounts to a "windfall" for the Claimant. We agree. We find no National warrant in the nature or circumstances of the violation or in the Agreement, and the organization has offered none, for paying the Claimant on any basis other than the difference between what she would have earned had she been awarded the Janitor position and what she actually earned during the time she was entitled to occupy that position.

        All other requests specified in the claim are rejected.


        FLINGS: The Third Division of the Adjustment Board, upon the whole record and all tile evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier sad the Employee 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
 Award Number 24196
 Docket Number CL-241F00

 That the Agreement was violated.

 A W A R D
Claim sustained in accordance with the opinion.

 Page 4

 NATH) NAI. RAIIROAD ADJUSTMENT BOARD
 By Order of Third Division

 Attest: Acting Executive Secretary
        National Railroad Adjustment Board


By.
        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 14th day of March 1983.