PARTIES ) Chicago and Western Indiana Railroad Company
 TO Tru. ) -and
 DISPUTi: ) Brotherhood of maintenance of Slay Employes

 QUESTIONS 1. Is Crossing Watchman Charles R. G:ringer
 AT ISSUE: a protected employee and thereby cn'citled
 to forty (40) hours of pay each wec!'r. at
 the straight time rate of a crossing
 watchman?
 2. If the answer to the above is in the
 affirmative, is Mr. Geringer entitled
 to payment since April 21, 1967, or is
 he entitled to payment only for the period
 beginning sixty (60) days prior to Decem
 ber 29, 1967 (date of claim presentation.)

 OPINION From early December., 1966, until. early April, 1967,
 OF BOARD: Claimant, a protected employee, did not work due to
 an infected leg, wh?.ch was the result of flu and a
 diabetic condition. His doctor then advised him that he could
 return to his Crossing Watchman's duties, so long as it was not
 heavy work and he was not on his feet too long. According to
 Claimant, he was examined by Carrier's doctor who did not think
 that the leg had healed enough, but who said he should "try it
 anyway."

 Claimant returned to work, apparently without incident, until he was laid off three weeks later for lack o-- work. Carrier offered Claimant work as a laborer, which he declined on the ground of physical incapacity. Laborers and Crossing ,^atchmen have separate contracts with Carrier. on May 4, Claimant was examined by Carrier's doctor for "entrance to service as Leverman from Crossingman." He was disqualified for that position "on account of hypertension, overweight and chronic varicose ulcers (active)."

 Carrier declined to continue Claimant's compensation, because of his physical incapacity to do such work. However, pursuant to Article IV, Section 5, of the February 7 Agreement, physical incapacity to perform the work of another
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                                  Case No. 7~T-4.3 :·!


position, under a different contract, is not grounds for loss Citller of protected status or of con>?ensation due prot:'Ctcd employees. Article TI, Section 1, provides than protecteC3 status terminates if an employee fails to obtain a position available to him in the exercise of his senioritv. But Carrier acknowledges that Claimant continues to r·~ a protected employee, according to Carrier's letter of Febru.ry 7, 1969.

 Claimant's failure to work as a F?at~hi'ian certainly was not due to his physical condition, but to a redL;ction in force. Despite Carrier's contention on the point, Captain of Police Rauchelli:°rger, in a letter to the gen=_,.'Ll C airman on February 13, 1968, said that Claimant "was furloucjh·cd on account of force reduction ...and he would be called back to crossingnan's position in seniority order should the r.oed arise."

 More than a year after the physical exz:1,ination, Carrier's doctor orote "that Mr. Gcringer would not haves been physically able to perform the duties of a Levcrman or a Crossingman." The latter finding is far too belated, based as it was upon a medical examination addressed to the physical requirements of a different position, to merit credence or to be relevant. Yor when compensation was denied it was because Claimant was unable to perfo'm a lcverman's job, and not because of inability to work as a watch;;,an. Carrier's intervening statement that Claimant would be recalled as a Crossing Watchman if the need arose proves this. Claimant not having been disqualified for the duties of his regular position, he was not obliged to invoke the provisions of Rule 21 of the 1949 Agreement concerning physical examination by a neutral physician.

 Since Claimant failed to work solely due to a layoff, he cannot be denied compensation under Article IV, Section 5, by a retrospective determination that he had been physically unable to work as a Crossing Watchman.
                        A S·7 A R D


            1. The answer to Question No. 1 is yes.


                2. The answer to Question No. 2 is that Mr. Geringer is entitled to payment


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                                  J, A.'?A1ZD idU.

                                  Case No. rasi-4-;-;v


                for the period beginning sixty (60) days prior to December 29, 1967.


                        Milton Fr"edman, t?cutral Member


Dated: Washington, D. C.
        September /p, 1969


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