By letter dated May 19, 2005, the Carrier notified C. E. Scott, Conductor,

("Claimant") to report for a Fitness-for-Duty Examination on Tuesday, May 31, 2005, at Lincoln and Physical Association & Nebraska Occupational Health in Lincoln, Nebraska. The letter advised the Claimant that: "Appointments may not be canceled or changed

without obtaining prior permission from the undersigned. Failure to comply with this instruction may result in disciplinary action." (Emphasis in the Original). The letter was signed by Camalynn S. Clark.

By letter dated May 27, 2005, Attorney Mark A. Kille informed Camalynn S.

Clark that the Claimant would not be attending the May 31, 2005 appointment in Lincoln. In the letter Attorney Kille informed the Carrier that because the Claimant "has not been advised by his treating physician as having achieved maximum medical improvement, it is simply premature for him to be evaluated by another physician for a determination of his fitness for duty."

By letter dated June 13, 2005, the Carrier notified the Claimant to report to the

Conference Room at the Depot at Marysville, Kansas, on June 17, 2005, for investigation and hearing in connection with his responsibility, if any, for: "Allegedly failed to comply

with instructions to attend a medical examination on Tuesday, May 31, 2005, which we were notified of on June 1, 2005."

By letter dated July 6, 2005, the Carrier informed the Claimant that the above charge against him had been sustained. As a result, according to the letter, the Claimant was "in violation of General Code of Operating Rule 1.1.3, effective April 2, 2000." The Carrier assessed the Claimant a "Level 2 Discipline which is five days off work without pay and you will be placed at the Conference Level in the Behavior Modification Matrix with a 24-month recovery period." (Emphasis in the Original).

The Organization does not assert any procedural errors.

The Organization argues that the Carrier failed to meet its burden of proof in the instant case because of mitigating circumstances and, as a result, opines that the discipline assessed against the Claimant must be reversed. The Carrier takes the opposite position.

The Organization initially argues that the Claimant "testified that he was unable to attend the examination because he was in too much pain from his on-duty injury." (Tr. p. 27). However, that is not exactly what he said. In this regard, the record indicates that the Claimant did not go to the examination because "I really didn't feel like it. I was in too much pain." Id. (Emphasis added). The Claimant wasn't incapacitated at the time, (Tr. pp. 16-17), he was just in some pain." (Tr. p. 16). (Emphasis added). He also wasn't in the hospital, or in jail. (Tr. pp. 16-17).

Based on the above, we conclude that the Claimant was able to attend the examination but chose not to because he was suffering some, but not debilitating, pain. The May 19u' notice informed the Claimant that he could not cancel or change the examination appointment "without obtaining prior permission from the undersigned." (Tr. p. 13). (Emphasis added). The notice also stated: "Failure to comply with this instruction may result in disciplinary action." Id. (Emphasis added). The record is clear that the Claimant did not obtain prior permission from the undersigned to not keep his appointment.

It is clear from reported arbitration decisions that management has the right, unless restricted by the agreement, to require employees to have physical examinations where the right is reasonably exercised under proper circumstances, such as where an employee desires to return to work following an accident or sick leave. Elkouri and Elkouri, How Arbitration Works (BNA, 6a' Ed., 2003), p. 825. The Organization has

The Organization does not argue in its "Position" that there are any procedural errors. However, following the investigative hearing, the Organization asserted that the Carrier committed a fatal procedural error when the notice of investigation was not issued within 10 days of the date the Carrier knew of the alleged rules violation. (Carrier's Exhibit C, p. 1 of 2). To the contrary, the record indicates that tire Claimant's notice was sent out within the timelines on the tenth day after the Carrier was fast notified by the physician's office that the Claimant did not show up for his medical examination. (Tr. pp. 20-21). Even the Claimant admits that he received tire Notice of investigation on a timely basis. (Tr. p. 10). Assuming armrendo this issue is properly before us, the Organization's argument is rejected.

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