STATEMENT OF CLAM:







OPINION OF BOARD:.
 Claimant was employed as a Carpenter Helper in the Bridge and Building (B&B) Subdepartment on the Montana Seniority District. On October 23, 1978 Claimant's neurologist contacted Carrier's supervisor B. J. White by telephone and advised that Claimant possibly was in physical danger on the job due to recurrent seizures or blackouts. This information was certified by the physician in a letter dated October 25, 1978, as follows:





























Claimant on October 23, 1978 of his removal from service, as follows:







s. J. White

 Super. B&8 27-06"W0 37
 . Awd. 37 3 2206























      Unfortunately, .h=sed on these cir=rstarces, and feri the safety of Mr. Ivers aril others with 6;hcm he might work, I rust: decline your request for reinstate=t of Mr. Ivers and payment for all icst wages. Sincerely,


      M. E. Hag:S Superintendent .


The claim of Agreement violation was appealed through channels on the property and was denied at all levels of handling. While the claimed Agreement violation was on appeal, Claimant.filed on March 20, 1980 a request for a Medical Board, pursuant to Rule 41 - Physical Disqualification:

      "RULE 41. PHYSICAL DISQUALIFICATION.


      A. When an employe is withheld from duty because of his physical condition, the employe.or his duly accredited representatives may, upon presentation of a dissenting opinion as to the employe's physical condition by a competent physician, make written request upon his employing officer for a Medical Board.


      B. The Company and the employe shall each select a physician to represent them, each notifying the other of the name and address of the physician selected. These two physicians shall appoint a third neutral physician, who shall be an expert on the disability from which the employe is alleged to he suffering.


      C. The Medical Board thus constituted will make an examination of the employe. After completion they shall make a full report in duplicate, one copy to the Company and one copy to the employe. The decision of the Medical Board on the physical condition of the employe shall be final.


      D. The Company and the employe shall each defray the expenses of their appointee, and shall each pay one-half of the fee and expenses of the third neutral physician.

. Awd. 37 - 2206

                                                  5


        E. If there is any question as to whether there was any justification for restricting the employe's service or removing him from service at the time of . his disqualification by the Company doctors, the original medical findings which disclose his condition at the time disqualified shall be furnished to the neutral doctor for his consideration and he shall specify whether or not, in his opinion, there was justification for the original disqualification. The opinion of the neutral doctor shall be accepted by both parties in settlement of this particular feature. If it is concluded that the disqualification was improper, the employe will be compensated for actual loss of earnings, if any, resulting from such restrictions or removal from service incident to his disqualification, but not retroactive beyond the date of the request made under Section A of this rule."


On April 22, 1980 Carrier advised Mr. Ivers that a Medical Board could be arranged upon receipt of a dissenting opinion from a competent physician. On May 2, 1980 Claimant sent Carrier a hand-written note prepared by his personal physician in December 1979 which stated, in part, "I feel he would be able to perform his previous work". Under date of May 13, 1980 Carrier's 010 wrote to Claimant's doctor as follows:

        Chester , , M.D. Columbia Fa s Clinic. Columbia Fail ltntana 59912


        Dear Doctor Hope:


        Re: Thomas G. Ivers


        There has berry considerable correspondence involving the above named onplayee and your note that he could return to work is appreciated. However, I have some concern as to the type of wart this man should

    . engage in because of his seizure problem. In light of your consul-

        tant's report and caution as to ,job piacwaent and the general history of

        individuals with seizure problems, I era reluctant to allow this man to

        work on scaffolding, open bridges, and around fast-moving equipment.

                                                Awd. 37 -:22066


    If you feel strongly that such activity is medically realistic, please advise. I hasten to inform you that I have no objection to his employment in railroad work, but feel that certain environmental controls are

    important. Tour prompt reply will be greatly appreciated . .. .


    Sincerely,


    oRicsNAt SIGNM BY


      Dr. Abbott Wnoerls L


    Abbott Skinner, M. B. Chief Medical Officer Personnel Department


Claimant's physician responded on May 21, 1980, as follows:

      Abbot` Skinner, M.D.

      Chief Medical Officer

      Burlington Northern

      176 East Fifth Street

      St. Paul, Minnesota 55101


      Dear Doctor Skinner:


      Re: Thomas G. Ivers , 4


      I have no argument against the strictions you have placed on Mr. Ivers, her er I would have to continue to classify him ataliy disabled until such time that Buritn on Northern could rehire h i m4


      Cor to ly,

      A


      Chester Hope, M.D.'


Based upon the foregoing evidence, Carrier determined that there was.not a basis under Rule 41-A to appoint a Medical Board. Mr. Ivers remains on medical leave of absence status and his claim has now been appealed to this Board for final disposition.
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In considering this claim, we have been cognizant throughout that we deal not with a disciplinary matter in which culpability is to be determined and penalties assessed, but rather with an unfortunate "no fault" situation. Frankly, we are of the opinion that this arbitration tribunal is a poor vehicle and an inappropriate forum for such a case because our jurisdiction technically is limited to determining whether a provision of the Agreement has been violated rather than weighing and balancing important but countervailing rights and equities which are in conflict in this case. In that connection, the Chairman of the Board deferred decision on the merits and urged the parties at the arbitration hearing to extend further their efforts to resolve this problem. The record shows that in April 1979 Carrier had proposed that, following rehabilitative counseling, Claimant could be offered a clerical position. So far as we can determine that offer-was rejected by Claimant. However, at the urging of the Chairman, the parties did make another attempt to place Claimant in a craft in which his physical condition would not jeopardize his safety. In January 1981, arrangements were made for Claimant to fill a shop laborer position at Havre, Montana, and he was offered that position. Claimant declined to accept the shop laborer position and, in due course, the matter came on for decision by this Board.
 At the outset, we find no merit in the claim that Carrier acted arbitrarily or unreasonably in removing Claimant from the high-altitude bridge work and other dangerous duties associated with his Carpenter Helper position. The medical evidence is overwhelming and unanimous that continuation in such work was detrimental to his own safety and possibly that of other individuals as well. There was no Agreemeac violation in his removal from service on or about October 23, 1978. See Awards 3-15367; 3-19328.
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The alleged violation of Rule 40 - Discipline is palpably inappropriate because it is well settled that the discipline rule is not applicable to bona fide physical disqualifications. Awards 3-11909; 3-18396; 3-18512; 3-18710..
 The consultation by Carrier's CM0 corroborated the findings of Claimant's own physicians regarding his condition. This unanimity regarding Claimant's physicial condition obviated the right to demand a Rule 41 Medical Board and argueado the physicians even concurred that Claimant should perform only restricted service if he was returned to work. The record before us indicates that Claimant has elected to reject two opportunities to return to such restricted service and instead seeks reinstatement to his former job. In the circumstances of this record we find no Agreement violations and we have no alternative but to deny the claim.

AWARD

Claim denied.


C. L. Melberg, Carri r Member F. H. Funk, Employe Member

                  Dana E. Eisrb_ea, irm=